Ayasli v. Armstrong , 56 Mass. App. Ct. 740 ( 2002 )

Rapoza, J.

(dissenting). I dissent because I conclude that the trial judge erred when he denied the defendants’ motion for a directed verdict on the plaintiffs’ civil rights claim under G. L. c. 12, § 111.¹

This case presents a squabble between neighbors, which, as is often the case, began peacefully enough but soon escalated in intensity. The Armstrongs did not, at first, oppose the construction work at the Ayaslis’ home.² Matters changed shortly after construction began. Work commenced prior to the issuance of a building permit and, once under way, the scope of the project exceeded what had been permitted by the conservation commission. What followed was a succession of petitions, appeals, and complaints in which both the Ayaslis and the Arm-strongs sought to gain the upper hand.

In order to establish a claim under G. L. c. 12, § 111, the Massachusetts Civil Rights Act, “the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ ” Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996). Assessing the Ayaslis’ claim by that standard, even with the evidence taken in the light most favorable to them, they have failed to establish a prima facie case against the Armstrongs. Accordingly, the trial judge should have allowed the Armstrongs’ motion for a directed verdict on the count alleging a civil rights violation.

Property owners, such as the Ayaslis, have a constitutional right “to use and improve [their] property, subject... to limitations on development lawfully imposed.” Id. at 396. The issue before us is whether the actions of the Armstrongs interfered with that right by means of “threats, intimidation or coercion” within the meaning of the Civil Rights Act. As set out by the majority, the offending actions of the Armstrongs fall into three categories: (1) petitioning activities before town boards and in Superior Court; (2) statements by Mrs. Armstrong addressed directly or indirectly to the Ayaslis; and (3) miscellaneous activities of the Armstrongs, including the keeping of dogs and the hitting of golf balls.

Where the Armstrongs’ petitioning activity was factually supported, arguably based in the law, and generally successful, it did not amount to a violation of the Civil Rights Act. None of the legal measures taken by the Armstrongs constituted an interference with the Ayaslis’ legitimate right to enjoy or develop their property, considering that the Ayaslis had commenced work on the premises without a building permit, embarked on a construction program that exceeded the limits of their original authorization, and, finally, obtained a new building permit without first procuring a special permit, as was required.³ Indeed, the legitimate basis for the Armstrongs’ petitioning activity is underscored by the fact that, although they did not always receive satisfaction from local authorities, their requests for relief were, to a large extent, successful. Thus, at varying points during the construction project the conservation commission issued a cease and desist order to the Ayaslis; the building inspector issued to the Ayaslis a notice of five violations of the State Building Code, including the commencement of work without a building permit; and the zoning board of appeals revoked the Ayaslis’ building permit due to their failure to have first obtained a special permit.⁴

Moreover, the Armstrongs’ efforts to see that their neighbors complied with pertinent regulations in the development of an environmentally sensitive piece of land does not remotely approach the outrageous conduct in Bell v. Mazza, 394 Mass. 176 (1985), cited by the majority. There, unlike here, the plaintiffs complied with all relevant regulations and were without fault in the development of their land. See Bell v. Zoning Bd. of Appeals of Cohasset, 14 Mass. App. Ct. 97 (1982). Nonetheless, in Bell v. Mazza, the defendants mounted a campaign against them and formed a homeowners’ association to oppose the plaintiffs’ construction of a tennis court on their property. Although the plaintiffs possessed all necessary permits to proceed, one or both defendants (1) attempted to have the plaintiffs’ electrical service cut off; (2) physically blocked the passage of one of the plaintiffs; (3) called in complaints about the plaintiffs to the police and fire department; and (4) became so disruptive at the building inspector’s office during a meeting about the construction that the police were called to remove him. Bell v. Mazza, 394 Mass, at 180. Considering such egregious actions, the court concluded that the plaintiffs had surmounted the “minimum hurdle” to survive a motion to dismiss for failure to state a claim under G. L. c. 12, § 111. Bell v. Mazza, 394 Mass. at 184.⁵ As unpleasant to the Ayaslis as some of the Armstrongs’ actions may have been, the dispute between them was largely confined to meetings of the conservation commission and the zoning board of appeals,⁶ and the Armstrongs’ behavior both at the meetings and elsewhere did not involve the thuggery that was evident in Bell v. Mazza.

In support of its view that the defendants acted in a threatening, intimidating, and coercive manner, the majority also cites the purported comments of Patricia Armstrong, variously made to either the contractor or the Ayaslis themselves, to the effect that she would be keeping an eye on the project, that she hoped the property would revert to conservation land, that once the building was down she hoped it would stay down, that she and her husband were going to appeal, and that she and her husband would do anything to stop the project. The majority also notes that she allegedly entered upon the premises and took pictures of the construction in progress, although apparently never with the Ayaslis present. However intemperate or inconsiderate such comments and conduct may have been, they fall far short of constituting violations of the civil rights of the Ayaslis, whether considered alone or together with the other evidence in the case.

The fact that relations were strained between the parties during construction was not surprising. Nor should a certain amount of posturing between them have been unexpected. Huffing and puffing is not uncommon during neighborhood disputes, especially those wending their way through town hall en route to further litigation. Nonetheless, the expressions of frustration to which Patricia Armstrong may have given voice in the course of her dealings- with the Ayaslis did not rise to the level of “threats, intimidation or coercion” as those terms are used in G. L. c. 12, § 111. Even the most excited of Mrs. Armstrong’s remarks failed to achieve the level of intensity that characterizes a “ ‘[t]hreat’ . . . [which] involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm.” Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994). Nor did she engage in “ ‘[i]ntimidation’[, which] involves putting [another] in fear for the purpose of compelling or deterring conduct.” Ibid. Finally, Mrs. Armstrong never participated in acts of “coercion[, which involves] ‘the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done.’ ” Ibid., quoting from Deas v. Dempsey, 403 Mass. 468, 471 (1988).

The remaining factors propounded by the Ayaslis and considered by the majority are also insufficient to sustain a claim under the Civil Rights Act. The two primary complaints of the Ayaslis, which counsel and the majority contend evince the Armstrongs’ frame of mind rather than constitute actionable civil rights claims, involve the Armstrongs’ two dogs and the hitting of golf balls. As to the first, the barking of the Arm-strongs’ dogs purportedly frightened the Ayaslis’ children. This was due, as it turned out, to the dogs being confined by an “electronic fence” which, although invisible to the human eye, effectively restricted them to the Armstrong property. There is absolutely no suggestion in the record that the Armstrongs set their dogs upon the Ayaslis, their children, or anyone else. Concerning the second complaint, the Armstrongs allegedly continued a questionable practice that had become traditional with their family: driving golf balls from their property into the ocean. The Ayaslis contend that this custom continued unabated, despite their purchase of the intervening property between the Armstrong home and the water. The record does not suggest, however, that this practice was ever carried on when the beach was in use.

It is also significant to note that these events occurred solely during the three weeks that the Ayaslis first occupied their property, between June and September, 1993. This was long before the Ayaslis began their renovation project that later became the subject of the Armstrongs’ petitioning activities and long before the Ayaslis filed their complaint alleging civil rights violations. Thus, there was insufficient evidence to support a reasonable inference that the Armstrongs were using their dogs or launching golf balls to threaten, intimidate or coerce the Ayaslis into abandoning their plans to renovate their property.

Finally, there is no civil rights violation lurking in the Ayas-lis’ assertion that the Armstrongs’ posting of signs to divert traffic denied them access to their property. The reason is simple: the judge directed verdicts in favor of the Armstrongs on the counts of the Ayaslis’ complaint claiming a right of way and alleging wrongful interference with that right of way. The Ayaslis, who did not appeal the separate judgment resulting from those verdicts, cannot now rely on the same claims, already rejected by the trial court, to bolster their assertion that the Armstrongs violated their constitutional right to use their property.

In conclusion, the Civil Rights Act exists to protect the rights of persons secured by the Constitution and laws of both the United States and the Commonwealth. It was not intended, however, to “create ‘a vast constitutional [and statutory] tort.’ ” Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 565, cert. denied, 516 U.S. 931 (1995), quoting from Bally v. Northeastern Univ., 403 Mass. 713, 718 (1989). I am concerned that the majority has expanded the application of the Civil Rights Act beyond the boundaries set by the Legislature to actions that, at most, sound in simple nuisance and trespass. In so doing, it diminishes the statute’s significance and dilutes its purpose, which is to protect the secured rights of individuals from conduct that society deems to be truly unacceptable.

The type of neighborhood imbroglio that we consider here is not at all uncommon, and I am loath to see such disputes in the future inevitably give rise to claims of civil rights violations merely because one of the participants proves intemperate or inconsiderate. “[T]he insertion by the Legislature of the requirement of threats, intimidation or coercion was specifically intended to limit liability under the act.” Freeman v. Planning Bd. of W. Boylston, 419 Mass. at 565-566. Where the plaintiffs failed to satisfy that requirement, the trial judge should have allowed the defendants’ motion for a directed verdict.

1 Although I am also of the view that the Ayaslis’ civil rights claim against the defendants had no substantial basis other than the Armstrongs’ lawful petitioning activities, I do not consider whether the motion judge properly denied the defendants’ special motion to dismiss under the “anti-SLAPP” statute, G. L. c. 231, § 59H. I decline to do so because my conclusion with respect to the Ayaslis’ civil rights claim is based upon evidence developed at trial, which would not have been before the earlier judge who decided the motion to dismiss solely on the pleadings and affidavits, as provided in the statute. See G. L. c. 231, § 59H. See also Duracraft Corp. v. Holmes Prod. Corp., All Mass. 156, 167-168 (1998). Moreover, even though the trial judge later denied the defendants’ renewed motion to dismiss under G. L. c. 231, § 59H, at the close of the plaintiff’s evidence, he did so on the ground that the “anti-SLAPP” statute was no longer an issue in the case, the motion having been previously denied, and not on the basis of the evidence presented at trial.

2 Indeed, Richard Armstrong publicly welcomed his new neighbors at a meeting of the Falmouth conservation commission and stated that he hoped they would enjoy the property for many years.

3 Where the Armstrongs’ petitioning activity did not constitute interference with the rights of the Ayaslis, as to this category, one need not reach the issue of whether there was interference by “threats, intimidation or coercion.” See Swanset Dev. Corp. v. Taunton, 423 Mass. at 395.

4 Although I do not address the anti-SLAPP issue, I pause to note that the Ayaslis filed suit against the Armstrongs shortly after that couple successfully challenged the Ayaslis’ building permit, and ten days before a scheduled hearing on the Ayaslis’ request for a special permit. I need not resolve whether the timing of the Ayasli lawsuit was coincidental, retaliatory, or for the purpose of dissuading the Armstrongs from an overly vigorous opposition to the special permit application.

5 The standard in the present case is, of course, different. In reviewing the denial of a motion for directed verdict, we consider whether, on the evidence presented, the plaintiffs made out a prima facie case and not whether, as in Bell v. Mazza, they merely stated a claim sufficient to survive a motion to dismiss.

6 In fact, the parties met for the first time at a second hearing of the conservation commission, held on March 16, 1994, approximately nine months after the Ayaslis acquired and began to occupy the property.