Colum. Plaza Assoc. v. Ne. Univ.

227 N.E.3d 999

COLUMBIA PLAZA ASSOCIATES

v.NORTHEASTERN UNIVERSITY.

SJC-13405

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 2, 2023.

Decided February 29, 2024.

"Anti-SLAPP" Statute. Redevelopment Authority. Practice, Civil, Motion to dismiss, Summary judgment, Retroactivity of judicial holding, Fraud, Attorney’s fees. Contract, Construction contract, Performance and breach, Implied covenant of good faith and fair dealing, Unjust enrichment, Promissory estoppel. Constitutional Law, Right to petition government. Unlawful Interference. Unjust Enrichment. Declaratory Relief. Consumer Protection Act, Unfair or deceptive act. Fraud. Frauds, Statute of.

Civil action commenced in the Superior Court Department on December 15, 2020.

A special motion to dismiss or, in the alternative, a motion to dismiss and a motion for summary judgment were heard by Rosemary Connolly, J.; a motion for attorney’s fees was heard by Jackie A. Cowin, J., and entry of judgment was ordered by her.

The Supreme Judicial Court granted an application for direct appellate review.

Henry F. Owens, III (Richard K. Latimer & Robert Patrick Cooper also present) for the plaintiff.

Daryl J. Lapp, Boston (Elizabeth H. Kelly, Boston, also present) for the defendant.

The following submitted briefs for amici curiae:

Robert S. Mantell, Audrey Richardson, & Emma Hornsby for Massachusetts Employment Lawyers Association & others.

Robert C. Ross, Boston, for NAIOP Massachusetts, Inc.

Jeffrey J. Pyle, Boston, for New England First Amendment Coalition.

Mark S. Furman & Emily C. Shanahan, Boston, for JACE Boston, LLC, & another.

Ruth A. Bourquin for American Civil Liberties Union of Massachusetts, Inc.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.¹

KAFKER, J.

This case is before us after, a judge in the Superior Court allowed Northeastern University’s (Northeastern’s) special motion to dismiss various claims, pursuant to G. L. c. 231, § 59H, and otherwise dismissed or entered summary judgment in favor of Northeastern on the plaintiffs remaining claims arising out of plans to develop a disputed parcel of land. We conclude that all the claims were properly dismissed. We also analyze the judge’s ruling on the special motion to dismiss using a revised framework to assessing such motions under § 59H, known more commonly as the anti-SLAPP statute. That revised framework, and the reasons necessitating such revision, have been set out in detail in a companion opinion issued today. See Bristol Asphalt co. v. Rochester Bituminous Prods., Inc., 493 Mass.—, 227 N.E.3d 1019 (2024) (Bristol Asphalt). Applying this framework, and upon consideration of the remaining issues before us on appeal, we affirm.

[1] 1. Background. a. Facts.² i. Linkage program. In the late 1980s, the city of Boston (city), through the Boston Redevelopment Authority (BRA), created a "Parcel-to-Parcel Linkage Program" (linkage program) to develop land in its Roxbury section. The linkage program sought to promote urban revitalization and to increase opportunities for minority participation in development by "linking" two parcels of property -- i.e., development of a profitable downtown property was linked to the development of property in Roxbury considered to be less commercially attractive. A development team, with a required minority partner, was to be selected by the BRA. An area identified for development in Roxbury, designated as parcel 18 and consisting of five subparcels (18-1A, 18-1B, 18-2, 18-3A, and 18-3B), is at the heart of the instant dispute.

ii. 1991 agreement and foreclosure. The plaintiff, Columbia Plaza Associates (CPA), was formed for the purpose of participating in the linkage program and developing parcel 18. In 1991, CPA entered into a sale and construction agreement with the BRA (1991 agreement) in which the BRA agreed to sell and CPA agreed to buy parcel 18 or certain subparcels thereof as designated by CPA and approved by the BRA, and CPA agreed to develop the land according to a master development plan approved by the BRA and the city’s zoning commission.³ Specifically, under the 1991 agreement, CPA was to, inform the BRA of its desire to develop and purchase a partic- ular subparcel. After providing notice, CPA was then supposed to "proceed in good faith and with all reasonable efforts" to satisfy the various conditions imposed on the sale and development under the 1991 agreement, including submission and approval of a development plan.

Under the 1991 agreement, CPA was allowed to mortgage the subparcels to secure debt related to their acquisition and development. A party acquiring parcel 18 in foreclosure was limited to the three following options: (1) complete construction on the subparcels in compliance with the requirements of the 1991 agreement, (2) sell title to the subparcels to a purchaser who would assume all "covenants, agreements and obligations of [CPA]" under the 1991 agreement, or (3) reconvey fee simple title to the subparcels to the BRA. CPA obtained a mortgage on parcel 18 and built an office building on subparcel 18-1B. For a short time, this building housed the registry of motor vehicles. However, by the mid-1990s, the registry had vacated this location and the building was condemned. CPA’s mortgage was foreclosed upon, and an affiliate of CPA’s lender acquired parcel 18 in a foreclosure sale. Northeastern subsequently purchased the land from this affiliate in November 1997. The quitclaim deed conveying parcel 18 to Northeastern also conveyed the affiliate’s "rights arising under [the 1991 agreement], between [the BRA] and [CPA]," and provided that Northeastern would "assume the obligations set forth in [the 1991 agreement]."

iii. 1999 agreement. On June 30, 1999, the BRA, CPA, and Northeastern executed a "Second Amended and Restated Sale and Construction Agreement" (1999 agreement), The 1999 agreement expressly rendered the 1991 agreement "null and void and of no further force and effect." The 1999 agreement also stated that Northeastern intended "individually and/or through an affiliated entity of Northeastern meeting the definition of ‘Developer’" to develop parcel 18. The 1999 agreement defined "Developer" to mean "Northeastern or an affiliated entity of Northeastern, specifically including coventures with CPA, designated by Northeastern to develop the applicable phase." The subparcels, referred to as "Phase Parcels," were designated for separate development from one another, with subparcel 18-2 selected for the construction of a parking garage (garage parcel), and the remaining subparcels intended for the construction of buildings.

Additionally, the parties agreed in 1999 to enter into a joint venture to acquire the garage parcel (second 1999 agreement). The second 1999 agreement also contained a provision whereby the parties agreed to enter into a joint venture agreement to develop a new building on subparcel 18-3A. Any such joint venture agreement was to be executed by the parties no later than six months after the closing date of the second 1999 agreement or a later date if the parties mutually agreed on an extension. However, the parties never executed any such joint venture agreement within the six-month period and did not agree to extend the deadline.

iv. 2007 development plan. Over the next six years following the 1999 agreement, the parties explored the possibility of developing together a hotel on subparcel 18-3A, including hiring an outside firm to assess its economic feasibility. However, the parties never entered into any formal agreement and, in 2007, Northeastern, in consultation with CPA and the BRA, abandoned plans to develop a hotel or other commercial building on subparcel 18-3A. CPA agreed to the removal of subparcels 18-3A and 18-3B from the development plans so that Northeastern could build a dormitory on those subparcels. In turn, Northeastern agreed to seek to develop a hotel on subparcel 18-1A "in partnership" with CPA. Thereafter, Northeastern and the BRA executed a new development plan (2007 development plan). The 2007 development plan stated that "Northeastern University in partnership with [CPA] … intends to proceed with construction on [subparcel 18-1A] (currently anticipated for use as a hotel)." The 2007 development plan also formalized the removal of subparcels 18-3A and 18-3B from the master development plan and the linkage program.

Between 2006 and 2008, the parties discussed development of a hotel on subparcel 18-1A. After several months of silence from CPA in 2008, Northeastern sent a letter to CPA on March 26, 2008, seeking to reinitiate discussions. CPA responded on April 2, 2008, stating that it intended to review the appropriate documents in order to foster an "informed dialogue." On May 14, 2008, Northeastern sent a letter to follow up with CPA, noting that while CPA’s previous correspondence had indicated readiness to discuss the project in "two to three weeks," CPA had yet to respond to Northeastern’s request to meet, and that, "despite repeated attempts," Northeastern had had "no substantive discussions" with anyone from CPA in the preceding five months.

Nearly one year later, in March 2009, Northeastern communicated to CPA that while the economic situation had deteriorated, raising concerns about the financial viability of the hotel project, Northeastern remained "dedicated to following through on its commitment to … proceed with the development of a hotel on Parcel 18." Northeastern also noted the possibility of obtaining funding for the hotel project and requested a meeting to discuss financing. Afterward, communications between Northeastern and CPA fell silent.

v. Subsequent court proceedings. In 2013, CPA filed suit against Northeastern, raising various contractual and other claims arising out of allegations that Northeastern was contractually required to work with CPA in any development of subparcels 18-3A and 18-3B and that Northeastern’s decision to build a...