Friends of Historic Glasgow (Delaware)

La Grange developer's SLAPP suit dismissed (2/7/07)

Developer's suit on family criticism dismissed

Case was to be first test in state of SLAPP's burden on plaintiffs

By ANGIE BASIOUNY, The News Journal

Posted Wednesday, February 7, 2007
Most of the claims in a developer's lawsuit against a family who sold him one of the last large farms in Glasgow were dismissed by a Chancery Court judge Tuesday.

Vice Chancellor Leo Strine said developer Stephen Nichols failed to prove that negative comments made about him by members of the Barczewski family undermined his plans to buy the 236-acre parcel and build a mix of housing and retail. The farm has been the focus of debate over its historical value.

Nichols, who paid $14.2 million for the property, was seeking $600,000 to $800,000 in damages.

The lawsuit would have been the first test of the state's anti-SLAPP statute. SLAPP stands for Strategic Litigation Against Public Participation, a type of lawsuit filed by corporations or developers who want to silence public criticism of their project.

Delaware is one of at least 24 states with legislation placing the burden of proof on the plaintiff in such a suit.

Although Strine's ruling did not directly address whether Nichols met that burden, he pointed out that free speech is not always protected.

"It is fundamental to the effective function of a republic that people be able to freely speak their minds about a government action," he said. "But the reason this case got as far as it did is the fact that because something arises in a public forum does not mean anybody can do anything they want."

Nichols filed the lawsuit more than a year ago, shortly after closing a deal with Anne M. Barczewski, the farm's owner, her sons Stephen J. Barczewski and George A. Barczewski, and daughter Joanne B. Lewis.

Those family members were named as defendants along with David and Susan Arday, who are Lewis' daughter and son-in-law. Anne M. Barczewski died a few weeks after the lawsuit was filed.

Under the purchase agreement, the sellers were obligated to support Nichols through the development approvals process. Instead, Nichols claimed, they made details of the sale available to county, state and private groups, and tried to instigate opposition to his development plan.

Nichols has submitted plans to New Castle County to build 75 detached homes, 149 town houses and more than 5,000 square feet of commercial space on the property, which is on Del. 896 near U.S. 40.

Nichols' attorney, Kim Gattuso, offered evidence of e-mails written by Susan Arday suggesting Nichols bribed county officials to get the development plan in motion. Susan Arday also wrote e-mails questioning her mother's state of mind during the sale and saying her grandmother would have wanted to preserve the land.

The parcel is believed to contain the bed of an 18th century road -- possibly the only one remaining in the state -- that was used by British soldiers as they marched into Delaware during the Revolutionary War. The property also has two documented American Indian camps and earthen bunkers from the war.

"We were not in this for financial gain," Susan Arday said. "This was about history."

Strine pointed out that the sale of the farm was widely known to the public, especially after New Castle County offered the family $9 million to buy the tract and convert it to parkland.

"Things get said about you that are not nice, and it kind of comes with the territory" of being in the public eye, Strine said. "The good thing about being a developer is you can go look at your bank statements."

Nicholas has one week to refile the case on a claim of "injurious falsehood." He also may appeal Strine's ruling.

Contact Angie Basiouny at 324-2796 or abasiouny@delawareonline.com.

WHAT IS SLAPP?

SLAPP stands for Strategic Litigation Against Public Participation, a type of lawsuit filed by corporations or developers who want to silence public criticism of their projects. Delaware is one of at least 24 states with legislation placing the burden of proof on the plaintiff in such a suit.

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