Friends of Historic Glasgow (Delaware)

SLAPP suit filed against LaGrange development opponents

[greendel] Alert 467 -- Are the FOHG being SLAPPed?

From: Green Delaware
Date: Mon, 09 Jan 2006 17:11:06 -0500
To: greendel@yahoogroups.com, greendelpresscontacts@yahoogroups.com
Subject: [greendel] Alert 467: SLAPP suit filed against LaGrange development opponents

Green Delaware Alert #467 (please post/forward) Are the Friends of Historic Glasgow being SLAPPED?

Developer Steve Nichols sues preservation activists

"If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP."
---The Anti-SLAPP Resource Center

January 8, 2005.

What is a SLAPP suit and what does Delaware law say about them?

SLAPP means Strategic Lawsuit Against Public Participation. The "The Anti-SLAPP Resource Center," http://www.thefirstamendment.org/antislappresourcecenter.html , describes SLAPPs this way:

The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights. These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."

Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.

Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.

Many states, including Delaware, have anti-SLAPP laws or court rules to protect public participation. Delaware's is found in Title 10, Part V, Chapter 81 of the Delaware Code (http://www.delcode.state.de.us/title10/c081/index.htm#TopOfPage), and went into effect in 1992: Section 8136. Actions involving public petition and participation. The law states:

"(1) An "action involving public petition and participation" is an action, claim, cross-claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, rule on, challenge or oppose such application or permission."

"(b) In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue."

Motions to dismiss such lawsuits are to be granted the court except under unusual circumstance. Parties subject to a SLAPP suit are entitled to "recover damages, including costs and attorney's fees, from any person who commenced or continued such action ..."

The struggle to preserve LaGrange

LaGrange (also known as the Barczewski farm) is a 236-acre property at the Northwest corner of Routes 40 and 896 in Glasgow, Delaware. Anne Barczewski purchased the property with her husband in 1942. She had long made well known her desire that the property be preserved and not developed. At her request, the property received an "historic overlay zoning." However, she failed to make clear legal provision for preservation and died on January 6, 2006.

The property has been described as follows:

"This property contains 11 documented prehistoric Native American Indian sites, earthen trenches from the British occupation of Aikentown (Glasgow's former name) in 1777, the last remaining section in the state of DE of an 18th century road, a remnant of the B. H. Latrobe feeder canal from 1804, and several structures from 1815 on the National Register of Historic Places. General Marquis de Lafayette named this farm while a visitor there in 1824. In 1996, a New Castle County historic zoning overlay was placed over the entire 236 acres of the farm. The Barczewski farm is one of the crown jewels of the Glasgow Historic Area and the State of Delaware. The farm is constantly under threat of development. "

Ms. Barczewski, with her three children, owned the property as "Tenants in Common." Two want to develop the property, apparently for maximum profit, and one seems ambivalent. The drivers for the preservation effort seem to be Susan Arday and her husband David Arday, and Nancy Willing--with other members--of the Friends of Historic Glasgow. See http://www.neighborhoodlink.com/org/historicglasgow/ for information about the property and the preservation efforts.

The "Friends" have gathered electronic petition signatures, testified at meetings of the county Historic Review Board, written letters to the editor, issued action alerts, and otherwise, through courteous and legal means, advocated for preservation of the property. (The Historic Review Board allows developers to make presentations to it under the guise of "public comment." Thus, the HRB has already heard two presentations from the proposed developers of the property.)

The quoted material below is from a fact sheet provided by the Friends of Historic Glasgow (http://www.neighborhoodlink.com/public/clubextra.html?nclubid=888222976&nid=472679746 ).

"In 2004, New Castle County officials made a $9.6 million offer to buy all but the five commercially zoned acres of the farm for preservation." The Tenants in Common apparently considered the offered price inadequate.

"On February 3, 2005, a sales agreement was entered into with local developer Steven J. Nichols, at an offering price of $14.25 million."

"Pam Scott, wife of New Castle County Council President, Paul Clark, and Andy Taylor are among the attorney's representing Mr. Nichols. In response to conflict of interest concerns raised by Friends of Historic Glasgow, Mr. Clark has promised to recuse himself from any County Council decisions involving the La Grange farm. The Council would need to vote on zoning changes that were cleared by the Land Use Department."

"On or about November 4, 2005, Steven Nichols filed a $2 million dollar lawsuit against La Grange Tenants in Common, claiming one or more the partners damaged his ability to fully develop the property as originally planned by failing to fully cooperate under the sales contract. The suit remains pending." [Nichols v. Lewis, et al., (C.A. No. 1758-N)]

"Steven Nichols, operating as La Grange Communities, LLC, closed and took possession of the Barczewski farm on November 10, 2005, for the originally agreed upon sales price of $14.25 million. A $14.25 million mortgage was obtained on the property from Wilmington Trust..."

On December 15, 2005, David and Susan Arday were named as codefendants in an amended complaint. Shortly thereafter, Susan was named as a subject in a temporary restraining order filed by the plaintiff. That TRO was denied by the Chancery Court.

In a request for assistance sent to the Delaware chapter of the American Civil Liberties Union (ACLU), the Ardays described their activities:

" ... we have spoken out publicly in favor of preservation and against development of this 236-acre tract for several years. We have been joined in the effort by several other individuals, and together we constitute a grassroots organization that calls itself 'Friends of Historic Glasgow' (FOHG). Our activities have centered on operating a website, contacting public officials, gathering petition signatures, issuing press releases, and testifying at public hearings."

At least one leader of the Friends of Historic Glasgow has received a subpoena demanding a wide range of documents and emails.

Nichols v. Lewis, et al. Civil Action 1758-N

Not the least interesting aspect of this suit is that Pam Scott, the wife of New Castle County Council president Paul Clark, represents the developer. Scott works for the law firm Saul Ewing, LLP (http://www.saul.com/offices/details.aspx?officeID=163). Her Saul Ewing colleague Michael F. Bonkowski filed the suit on October 31, 2005, on behalf of developer Stephen J. Nichols. It was amended to add Susan and David Arday as defendants in December. The documents are public records in the Delaware Court of Chancery (New Castle County).

The "Complaint" makes a variety of allegations in formal legal language. For example, it claims the Ardays "tortiously, wrongfully, improperly, maliciously, and without justification, attempted to and did interfere with the Agreement ... disrupting Plaintiff's efforts to develop the property." (The entire document is available via email from Green Delaware.)

The Ardays are represented by David L. Finger, (http://www.delawgroup.com/) an excellent free-speech lawyer who has represented a Green Delaware leader in a free speech case. See http://www.greendel.org/item.xhtml?name=alert_0087. Finger did not want to say much about the Nichols case.

Conflict of Interest?

We spoke about the case to Paul Clark. Clark said he knew nothing about the case and didn't typically discuss such matters with his spouse. We tried to draw him out on the general issue of developers suing citizen advocates, but he seemed more interested in articulating developers' "right to sue if their rights are violated."

Many will think "conflict of interest!" Is there one? We aren't lawyers, but would think that in a legal sense, probably not. A married couple has a right to pursue separate careers. But how separate are the careers really? The News Journal's Al Mascitti, in a September 19, 2004 column, quoted John Flaherty of Common Cause as saying:

"It may be ticklish in that it causes political repercussions, but I don't think a candidate should be judged by what a spouse does or doesn't do ... It will probably become fodder for [Republican candidate Ernie] Lopez in the campaign, but I think Clark should be judged on his individual merits and not because his spouse is an attorney dealing with land use before the county. As long as there's full and complete disclosure, I don't see a problem. And it's going to be one of the most disclosed issues in the campaign."

In a real-world sense, is there a conflict? Of course there is. Of all the people the Democratic party could have nominated for NCC Council President, why choose one married to a prominent development lawyer? During the campaign the Delaware Republican party claimed "Paul Clark & Big Developers. Too Close for Comfort." Quite so. There is a problem and we are seeing it every day in actions of the New Castle County government.

But even more real to us is the chilling effect of SLAPP suits used to shut down democratic (small "d!") activists. We'll follow this case with interest.



Green Delaware is a community-based organization working on environment and public health issues. We try to provide information you can use. Please use it. Do you want to continue receiving information from Green Delaware? Please consider contributing or volunteering. Reach us at 302.834.3466, greendel@dca.net, www.greendel.org , Box 69, Port Penn, DE, USA, 19731-0069

Links

The Anti-SLAPP Resource Center
Title 10, Part V, Chapter 81 of the Delaware Code (anti-SLAPP)
Pamela Scott, Esquire
David L. Finger, Esquire
Green Delaware's Free Speech case
Green Delaware's web site