Getting SLAPPed : Homeowner Groups, Community Activists Face Lawsuits by Developers, Government Agencies and Others They Have Battled

Ralph and Margie Gee of Burbank never expected their protests over airport noise and expansion plans to tie up their home in a lengthy court dispute.

But when they and other homeowners filed suit and their fight with the Burbank-Glendale-Pasadena Airport Authority turned ugly, airport officials filed a notice of lis pendens --meaning that the Gees’ home is now the subject of litigation--and they can expect a tough time selling or refinancing it until the airport authority drops its claim.

About 400 nearby residents, who like the Gees sued the authority in 1982, face the same consequences.

The Gees and their neighbors are not alone. A growing number of homeowner groups and community activists in Southern California and across the country are learning the hard way that what they say and what they do can get them sued.

Real estate developers, along with public agencies, schoolteachers and city council members, are suing community activists over proposed building moratoriums, ballot initiatives, charges of incompetence, recall petitions and even unfriendly letters to the editor.

The charges brought against individuals and groups may include defamation of character, nuisance, interference with economic advantage, malicious prosecution, abuse of the legal process and even emotional distress.

Homeowners who try to stymie new construction projects are particularly vulnerable as a small but growing number of builders discover that conflict is sometimes more effective than compromise, and that a lawsuit, or even the threat of a suit, can quiet homeowner protests.

“It takes time and money to counter such claims,” said Margie Gee. “It’s taking democracy away.”

Suits aimed at community activists have become common enough that they’ve even been given a name: “strategic lawsuits against public participation,” or SLAPPs.

Hundreds, perhaps thousands, of SLAPPs are filed every year, report Penelope Canan and George W. Pring, two University of Denver law professors whose researchers came up with the “SLAPP” nickname as part of an ongoing study.

While most developers and other plaintiffs see their SLAPP suits as the only way to counter unfair opposition, Canan and Pring take the position that these suits seek to stifle public participation in politics. “We think of them as bogus lawsuits,” Canan said.

SLAPP suits, she argued, violate the petition clause of the First Amendment to the U.S. Constitution, which protects private citizens who petition the government. And because most citizen groups are essentially petitioning the government to control the private sector, she believes, their activities should be protected.

Based on their study of several hundred SLAPPs, the University of Denver researchers found that the average SLAPP asks for $9 million in damages and lasts about three years before getting resolved. Such actions are also most popular in California, New York and Colorado.

Most SLAPPs, the Denver professors said, eventually get thrown out of court on constitutional grounds. And a sizable number of cases result in what’s known as a SLAPP-back, where the finally victorious homeowners then sue the developer for suing them.

Very few developers win in court, Canan said, adding that experienced developers “know the value of good public relations” and they recognize that suing the community may do more harm than good.

Most developers who do file or threaten a SLAPP suit don’t expect to win, Pring said, but SLAPPs are “seen as a way to silence the opposition.”

For the Burbank-Glendale-Pasadena Airport Authority, filing a notice of lis pendens was intended to persuade dissident homeowners to sign navigation easements that give the airport rights to schedule takeoffs and landings over adjacent homes.

Without such an easement, expanding flight schedules and facilities becomes more difficult for the airport. And, said airport spokesman Victor J. Gill, “we have to protect our interests.”

Among California homeowner groups facing SLAPP suits:

--A group of homeowners in Thousand Oaks has put up its community center as collateral for a court judgment won by the Lang Ranch Co.

The Westlake North Property Assn. originally filed suit against Lang Ranch and the City of Thousand Oaks in an attempt to block a mixed-use project that the homeowners believed didn’t have a proper environmental impact report.

Not only did the homeowners lose their bid for a hearing, but the judge, at the urging of the developer, imposed sanctions totaling $750,000 against the homeowners and their attorneys. Fearing they would be held personally liable for the judgment, the homeowners settled with Lang Ranch and other defendants named in their suit.

The group’s attorneys have appealed the decision and are seeking to reverse the sanctions imposed by the U.S. District Court.

--The Topanga Assn. for a Scenic Community lost its bid to stop construction of a residential subdivision near Topanga Canyon Boulevard and Mulholland Drive and was ordered, under California rules of court, to pay the appellate costs of Grupe Development Co. of Stockton when the state Supreme Court declined to hear the appeal.

Attorneys for the builder said they now are considering whether to sue the homeowners for malicious prosecution and other damages.

--And in Lake Tahoe’s Squaw Valley, the Institute for Conservation Education is preparing to fight a $75-million lawsuit brought by Perini Land & Development Co., which had proposed a resort complex that the conservationists opposed.

“I see a mounting frustration on the part of developers,” said Gerald Silver, president of Homeowners of Encino. “There’s a real effort to intimidate homeowner groups to back off.”

And such efforts can work.

Silver recalled pulling out of a fight over the placement of certain billboards along Ventura Boulevard when faced with the likelihood of a long court battle with the City of Los Angeles and a local sign company.

After “receiving from our opponents interrogatories and responses two inches thick every few days,” he said, “my wife and I bailed out of our suit. . . . In three months we ran up $25,000 in legal fees. I didn’t want to jeopardize everything I have.”

In some disputes, developers need only rattle legal sabers to silence opponents.

Jama Construction Corp. of Beverly Hills used the threat of a lawsuit to get homeowners in Brentwood and Bel-Air to back off their demand for a full hearing over the hauling of dirt from a hillside development near Sunset Boulevard and the San Diego Freeway.

Residents were warned, “You keep harassing me and I’m going to sue you,” recalled Jama’s attorney, Benjamin M. Reznik of Sherman Oaks. “They took Jama seriously.”

Thousand Oaks homeowner Hallie Blau never dreamed her community center would have to be put up as collateral while she and her neighbors pay a settlement with the developer they sued several years ago.

“The litigation has really taken its toll on our community,” Blau said. “The homeowners were so intimidated that they thought they would lose their homes.”

Ultimately, the homeowners settled with Lang Ranch to pay $123,000 rather than let the case drag on through a long and expensive appeals process. Blau was the only member of her group to vote against settlement, but she understands her neighbors’ fears of being held personally liable for damages.

The homeowners’ attorneys are appealing their own case to the U.S. 9th Circuit Court of Appeals, along with the support of the California attorney general and the Los Angeles County Bar Assn.; a hearing has been set for May 11.

SLAPP suits are “intended as harassment” by developers, said Westside slow-growth advocate Laura Lake. The result, she said, is that “a lot of people are chickening out.”

“I have been threatened but it’s never happened,” Lake said, but others have not been so lucky. That’s why most associations are now incorporated, she said, and “many serious activists have personal liability insurance.”

The threat of litigation doesn’t just scare off the neighbors, it also scares off lawyers who might otherwise volunteer their services to help the neighbors, she added.

Gideon Kanner, a professor at Loyola Law School in Los Angeles, thinks the civil rights of some developers are being violated by community activists.

“These people (anti-development advocates) come out of the woodwork,” he charged, and have become “drunk with power.” Public officials who want to get reelected, he said, are essentially “blackmailed” into ignoring a developer’s right to build on his or her land.

However, Kanner added, as unfair as he believes their protests may be, citizens still have the right to petition the government and voice their opinions.

“It’s one of those tough areas of the law,” he conceded, so his advice to developers thinking about a lawsuit is “don’t do it.”

Most of the time, Kanner said, developers are better off just giving in and either writing off their losses or passing them on to tenants or buyers.

Kanner’s criticism of the tactics of homeowner groups was strongly denied by Encino homeowner president Silver, although he did concede that some activists make the mistake of trespassing on private property during their protests or not doing enough homework on the projects they are trying to block.

But by and large, Silver argued, activists keep their protests very professional.

“Developers don’t think twice about using every trick in the book to get their project built,” Silver charged. “Now homeowners are using every possible tool, whatever it takes, as long as it’s legal . . . to control out-of-control developers.”

Homeowners are entitled to fight hard for what they believe in, said Doug Ring, a partner in the Century City law firm of Gold, Marks, Ring & Pepper, but many groups engage in intentional misrepresentation of facts and needless procedural delays that are unfair to developers.

“People tend to lose sight of the enormous economic injury caused by their protests,” Ring said. “A one-year delay can kill a project.”

Many homeowners file suit against developers thinking “I’ve got nothing to lose,” Ring said. “Shouldn’t there be some down-side risk for someone who uses the legal system and loses?”

While Ring said he thinks that some activists deserve to be sued, he still advises his development clients that the smartest thing they can do is make peace with the community.