Ayasli v. Armstrong, 99-P-274.

• Decision Date: 18 December 2002
• Docket Number: No. 99-P-274.,99-P-274.
• Citation: 780 N.E.2d 926,56 Mass. App. Ct. 740
• Parties: Yalcin AYASLI & another<SMALL><SUP>1</SUP></SMALL> v. Richard S. ARMSTRONG & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

780 N.E.2d 926

56 Mass. App. Ct. 740

Yalcin AYASLI & another¹ v. Richard S. ARMSTRONG & another.²

No. 99-P-274.

Appeals Court of Massachusetts, Barnstable.

Argued February 8, 2001.

Decided December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Marcus E. Cohn, Boston, for the defendants.

Kevin P. O'Flaherty for the plaintiffs.

Present: GREENBERG, BECK, & RAPOZA, JJ.

BECK, J.

The plaintiffs and the defendants own adjacent waterfront property in Falmouth. The one thing on which they agree is that the defendants, Richard and Patricia Armstrong opposed proposed renovations to the plaintiffs' house. The plaintiffs, Serpil and Yalcin Ayasli, claim that the defendants "engag[ed] in ... behaviors which were calculated to harass, intimidate, and coerce [them] into abandoning the [r]enovation," thus interfering with the Ayaslis' right to use and improve their property, in violation of the State Civil Rights Act, G.L. c. 12, §§ 11H, HI. The defendants claim that they did nothing more than exercise their legal rights as abutters to petition for relief. After the defendants' motion to dismiss pursuant to G.L. c. 231, § 5911 (the "anti-SLAPP" statute) and their motion for summary judgment were both denied, the case went to trial before a Superior Court jury. The jury returned verdicts for the plaintiffs, awarding them substantial damages and attorneys' fees. The principal issues at trial, as well as on appeal, concern the applicability of the "anti-SLAPP" statute and the State Civil Rights Act to the facts of this case.

1. Factual and procedural background. From the evidence introduced at trial, the jury could have found the following facts. See Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 550, 646 N.E.2d 139, cert. denied, 516 U.S. 931, 116 S.Ct. 337, 133 L.Ed.2d 235 (1995). In June, 1993, the Ayaslis bought oceanfront property in Falmouth from Barbara Sweet, the widow of Richard Armstrong's uncle, for $500,000. The property consisted of an early 1900's bungalow style house, with a two car garage on 1.6 acres of land. The Armstrongs owned a house on property adjacent to that of the Ayaslis ancazphad lived there year round since 1972. Richard Armstrong also had an interest in a third adjacent lot that he and his two sisters inherited from their parents (the white house).

The house the Ayaslis bought had five bedrooms and a floor area of approximately 1780 square feet. Richard Armstrong's aunt and uncle had used the house as a vacation retreat for fifty years. It had not been updated for many years and needed renovation. In recent years it had been used very little. Access to the Ayaslis' house was via a private road marked by a street sign for "Sweet Road" and a deeded right of way over the Armstrongs' land.

In extended negotiations with his aunt, Richard had offered $285,000 for the property. He emphasized that the property was "very important" to the family, calling it their "anchor to windward." In a letter to his aunt's lawyer, he wrote that "it would be devastating ... not to be able to keep [the property] as part of the family for generations to come." He expressed concern about "outsiders" buying the house. In a memorandum on posttrial motions, the trial judge (who saw the property along with the jury during a view) described the property as part of "a [three]-lot compound off a private road leading to a beautiful area overlooking Megansett Harbor in North Falmouth." He described the Armstrongs' house as "beautiful" and the property the Ayaslis bought as "the most picturesque."

The plaintiffs took possession in June, 1993. They and their three children, then ages approximately fourteen, seven, and five, spent about three weeks at the property between June and September that first year. In those first weeks, the Ayasli children were frightened by the Armstrongs' dogs, which appeared to be chasing them when they walked along Sweet Road. There was a beware of dog sign on the Armstrong property; the electronic fence controlling the dogs was invisible. On at least one occasion, the dogs appeared on the Ayaslis' property. Mrs. Ayasli was also concerned for the children's safety when members of the Armstrong family hit golf balls from the lawn of the white house into the water on the Ayaslis' property where the children played and swam.

Not long after taking possession, the Ayaslis engaged an architect to draw plans to renovate the house. Those plans were submitted to the Falmouth conservation commission, which held a hearing on November 10, 1993. At the hearing, Richard Armstrong read a letter recounting his connection to the property going back five generations, and pointing out his concerns about the property including the water supply, wetland issues, flooding, easements and rights of way, access, and intensity of use. He had expressed the same concerns in negotiations with his aunt, claiming that the property had numerous environmental problems, and asserting that his "thorough knowledge of state, county and local regulations" would be helpful in resolving these issues. The commission issued an order of conditions on November 17, 1993. See G.L. c. 131, § 40.

On December 14, 1993, the Ayaslis' architect, as their agent, filed an application for an "alteration/addition permit" with the Falmouth building department. The application, estimating the cost of the project at $150,000, was approved by the building department on December 27, 1993. The proposal included replacing the existing cesspool with a "Title V" septic system.

The contractor's crew began work on the house on January 20, 1994. At that time, the contractor went to see Patricia Armstrong to discuss the project with her. He explained that there would be extensive renovation, including some demolition, such as taking the chimney down and removing the roof. She expressed surprise at the extent of the proposed work and said that she had a video camera and would be keeping track of the project. The next morning the chairman of the conservation commission and the commission administrator appeared on the Ayaslis' property shortly after 8:00 A.M., explaining that they had received a complaint from the Armstrongs.

After conferring with the chairman and the administrator, the contractor wrote a letter notifying the commission that he would be starting work on the property. A building permit issued several days later.

Once the contractor started work, he discovered that the house was not structurally sound. The corner posts were rotten and the footing would not support the structure. In order to make a full inspection, the contractor took the roof off, removed two of the exterior walls, and exposed the porches. When Patricia Armstrong saw the state of the house, she called the conservation commission again. After inspecting the property, the commission issued a cease and desist order, on the ground that "[t]he scope of the work being done on the property far exceed[ed] the scope of the work permitted by [the conservation commission]."

The contractor arranged a meeting with the defendants at their home a few days later to review the project. Patricia Armstrong told the contractor she hoped that the house would not be rebuilt and that the property would become conservation land. She also revealed that she had already gone onto the property to take photographs.

At about the time the work began, a new sign appeared on the right of way. A piece of cardboard had been stuck in the ground on which the words "Ayasli right of way" were written with an arrow pointing in the direction of an old right of way referred to as the "loop" road. The route was impassable, covered with rocks and a pile of dense grade fill. It was not possible to drive around it. Serpil Ayasli felt humiliated because only they were directed to a route that was impassible.

The architect and the contractor returned to their drawing boards and filed a new notice of intent explaining in detail the background of the project, the original scope of work, the changes in the scope of work, and the proposed additional work. The conservation commission held a second hearing on March 16, 1994. The plaintiffs and the defendants were there, as well as the contractor and his wife, the architect, and the plaintiffs' lawyer. Serpil Ayasli commented to Patricia Armstrong that it was too bad that the hearing was the first time they had met, and said that the Ayaslis also cared about the "historical nature of the house." Patricia Armstrong replied that she did not care about that and that it was "not personal" but the property was her "backyard" and "now that the house was down, she wanted it to stay down."

As the parties left the hearing, at which the commission apparently indicated its intent to approve the order of conditions, the plaintiffs' lawyer suggested that the parties try to resolve some of the issues between them. Patricia Armstrong responded: "This is not the end. We will do everything we can to stop this project." Mrs. Ayasli testified that she felt threatened by that remark and wondered whether they would have the financial and emotional strength to see the project through.

On the morning following the March 16 hearing, the contractor went to the building department and the conservation commission. In the hall between the two offices, he encountered the defendants. Patricia Armstrong waved a piece of paper and said she was going to appeal. She called the contractor a "dupe" of the plaintiffs. Shortly after that encounter, the contractor saw the defendants in the board of appeals room.

Both Armstrongs were active in local affairs. Richard had served on a local hospital board and as an elected selectman, as well as assistant secretary of environmental affairs for the Commonwealth. Patricia was involved in a number of human services volunteer activities as well as the "Sustainability Indicators Council ... a creature of the Cape Cod Center for the Environment."

On April 4, 1994, counsel...