February 15, 2007 Issue                                       

©2007 The Chestnut Hill Local

Better watch what you say, you could be SLAPPed
Residents opposing neighborhood development could be vulnerable to suits used by developers to silence them, but new legislation is being introduced this year to beef up protection .
by KRISTIN PAZULSKI

Residents in Philadelphia’s neighborhoods have considerable influence on their community’s development, so much so that the city’s Zoning Board of Adjustment follows an unwritten rule of basing its decisions on residential and commercial developments on the recommendations of neighborhood zoning committees.

Residents affected by projects know that attending neighborhood meetings, including the Chestnut Hill Community Association’s Development and Review Committee and West Mt. Airy Neighbor’s Zoning Committee, and speaking out against a project, makes a difference in stopping unwanted development.

What a neighbor at one of these meetings is not always aware of is that their heated words can be used against them in a practice developers have used, called SLAPP, or Strategic Lawsuit Against Public Participation.

A slander suit can be brought against a citizen who, in public, said something the developer felt was defamatory, false or malicious. What makes a suit strategic (or a SLAPP) is that the motivation of the suit is not to collect monetary damages from the community members for slanderous remarks, but rather to silence public opposition to a project through the suit and the legal fees that accompany one.

“It’s the possibility of being sued, and the fact that they can’t afford to be sued that prevents people from talking,” said state Rep. Camille George (D-Clearfield County), who is introducing legislation this year to protect citizens from SLAPP practice. “[The possibility of being sued] injects fear in them.”

George already introduced legislation in the 1990s that was supposed to protect citizens from this type of suit. His proposed legislation, House Bill 393, would have allowed residents to request a sooner preliminary hearing to decide whether the suit was legitimate or not, therefore allowing developers to protect themselves from slanderous remarks while stripping them of their ability to sue to silence opposition long enough for project approval to be given.

But by the time the legislation was signed into law in 2000, it had been weakened in the Senate only to protect communication to government agencies, rather than carrying out George’s intention to protect all communication “in connection with an issue related to enforcement or implementation of environmental law or regulation,” as his first legislation read.

Robert Richards, a Pennsylvania State University professor of journalism and law and founding co-director of the Pennsylvania Center for the First Amendment, has helped George craft anti-SLAPP legislation.

“[The current law] is watered down from what the original intent was,” Richards said in a phone conversation in December. ”It was a compromise measure, and is fairly narrow. Other states have a more expansive array of protections [for their citizens].”

Adding to the law’s narrowness was an interpretation made by Judge Richard Hodgson in 2004. The case, which was heard in Montgomery County Common Pleas Court and is the Pennsylvania case that has laid the foundation for interpreting the anti-SLAPP law, involved a group of residents that was sued by developers (Penllyn Greene Associates, LP, and The Nolen Group, Inc.) for speaking against a residential development to the media and potential homeowners.

Judge Hodgson, who heard the case, judged that the residents were not protected from litigation under the 2000 anti-SLAPP legislation, but, more importantly, he interpreted the law to say that only criticism directly communicated to a government agency was protected by the anti-SLAPP legislation.

Richards illustrated the threat well in his commentary article that appeared in the Philadelphia Inquirer of Nov. 7, 2005, when he painted the picture of a man standing up in a community meeting and calling a developer’s projects “overbuilt, rundown eyesores.”

“The statements at issue in typical SLAPP actions, as might be expected, involve vituperative comments, often spoken in the heat of the moment, but do not reach the level of defamation,” he wrote.

In other words, any opposition, even if it does not seem slanderous, voiced to the news media (say, the Local in the form of letters or quotes) or to a neighborhood zoning committee in Philadelphia (that, despite its strong influence on the city’s ZBA, is not a government agency) is vulnerable to a SLAPP suit.

“Given Judge Hodgson’s interpretation, citizens now would be vulnerable to SLAPP suits for all remarks except those directly communicated to government agencies,” Richards wrote in his Inquirer commentary.

In 2005, an appeal of this decision to the Pennsylvania Commonwealth Court did not reverse the Hodgson decision. Although citizens remained unprotected by the anti-SLAPP law, the appeal did make an important clarification that applies to Chestnut Hill and Mt. Airy’s non-governmental committees.

The decision stated that communication, which is not “knowingly false, deliberately misleading” or a “wrongful use of process,” to a third party (such as the media or community zoning committees) is protected if the information “is aimed at procuring favorable action.”

In the case of the Montgomery County residents, they were not protected by anti-SLAPP legislation because the project they opposed had already been approved and therefore their statements to the media and potential homeowners could not have influenced any “favorable action.”

While this decision helped boost citizen protection, there are still loopholes in the law.

Suits can still be filed and used to silence neighborhood opposition during the most critical time in the approval process. And while the legislation was interpreted to give protection to citizens communicating with government agencies over environmental issues, the appellate court specifically excluded land use, planning and zoning from the “environmental” category.

Matthew Maciorkoski, an aide to Rep. George, wrote in an e-mail that “it’s a matter of semantics that zoning disputes are or are not ‘environmental issues.’ [Zoning] is certainly environmental to me.”

The court, however, decided differently.

The new legislation George promises to introduce this year aims to clarify and tighten the language of the 2000 law, specifying that expressions of opposition over land use planning and zoning be protected as environmental issues.

“Now, since the ruling [in 2005], George has indicated he is interested in pursing an even stronger measure, one that would not be hedged on ‘procuring favorable government action,’” Maciorkoski wrote. “Basically, we want First Amendment rights protected when a citizen speaks out in good faith on any public issue. The landowners’ free speech rights have been chilled, in our opinion. They’ve been dragged through county and Commonwealth courts and [have], I suspect, incurred substantial legal bills.”

Also, the legislation would enable citizens being sued to request a quicker preliminary hearing to determine if the suit is a SLAPP before a developer has time to go through a project approval process and before the citizen goes through a longer court process (racking up more legal fees).

Though a date has not yet been set for the introduction of new legislation in Harrisburg, the bill already has 29 co-sponsors in the state House of Representatives, and Maciorkoski said he expects George will sit down with Richards soon to discuss a bill that will clarify and further protect citizens from a developer’s SLAPP.

Contact staff writer Kristin Pazulski at 215-248-8819 or Kristin@Chestnuthilllocal.com.