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Landmarks Holding Corp. v. Bermant

decided: November 17, 1981.

LANDMARKS HOLDING CORPORATION, ET AL., PLAINTIFFS-APPELLANTS,
v.
DAVID W. BERMANT, ET AL., DEFENDANTS-APPELLEES



Plaintiffs appeal from summary judgment entered in the District of Connecticut, Eginton, J ., on January 19, 1981, holding that numerous suits brought and sponsored by the defendants were immune from antitrust liability under the Noerr-Pennington doctrine. Reversed and remanded.

Before Lumbard, Mansfield and Van Graafeiland, Circuit Judges.

Author: Lumbard

Plaintiffs, partners in a real estate development, appeal from an order entered in the District of Connecticut on January 19, 1981, granting summary judgment to the defendants in an antitrust suit. The complaint alleged that the defendants, consisting of two existing shopping centers, individuals who were managers and/or part owners of those centers, and certain nearby property owners and residents, had conspired to prevent the plaintiffs from opening a competing shopping center by organizing protracted opposition before state administrative agencies, by litigating in the state courts in bad faith, and by soliciting and subsidizing others to bring baseless litigation in the state courts. Judge Eginton held that defendants' alleged actions were protected activity and dismissed the complaint. We disagree and we reverse.

I.

As this case is before us on appeal from summary judgment, we must take as true the facts alleged in the complaint and as shown in affidavits and the discovery record. Hamden is a town of approximately 50,000 people situated in the Connecticut countryside six miles north of New Haven. In the 1960's, two shopping malls, Hamden Plaza and Hamden Mart, had the Hamden regional shopping market to themselves. Their freedom from competition was threatened, however, when in 1969 the plaintiffs proposed to build a modern, enclosed shopping mall on 104 acres of land that they owned on Evergreen Avenue in Hamden, less than one mile from Hamden Plaza. This case arises out of defendants' persistent, and ultimately successful, efforts to delay and block construction of that competing shopping center.

In 1969, the May Department Stores Co. signed a partnership agreement with plaintiffs to develop and operate a shopping center on the Evergreen Avenue site. The contract required plaintiffs to obtain the necessary zoning changes and provided that either party could terminate the agreement should the zoning reclassification not be forthcoming.

Upon learning of plaintiffs' plans, the owners of Hamden Mart*fn1 and Hamden Plaza (the "Plaza defendants") decided to oppose the development. David Bermant, a co-owner of Hamden Plaza, conceded in a deposition taken on March 2, 1973:

We found out that this center is subject to rezoning by the Town, plus the expenditures of huge sums for new roads to serve the mall, also by the Town.... it was decided to oppose this effort with every means, to either defeat or delay for as many years as possible, this proposed center.

The defendants planned to litigate regardless of the merits, anticipating that even if they lost they "could delay the development of this property a minimum of three to five years..." This delay, defendants hoped, would induce the May Department Stores Co. to abandon its plans and encourage prospective tenants to sign leases in Hamden Plaza or Hamden Mart rather than wait for the new center to be built.

Construction of the proposed mall required the plaintiffs to seek three separate rulings by the Hamden Planning and Zoning Commission ("HPZC"). First, plaintiffs had to apply to the HPZC to adopt regulations creating a zoning classification for shopping centers. Prior to 1970, Hamden had no such classification.*fn2 Second, the plaintiffs needed to have the HPZC adopt street layout plans for access highways leading to the mall. Third, the plaintiffs needed a zoning change for their particular parcel from manufacturing classification to the newly created regional shopping classification.

The Plaza defendants appeared personally before the HPZC to oppose the changes sought by the plaintiffs. They appealed from each adverse decision of the HPZC to the Court of Common Pleas-knowing they lacked standing to do so-and from there to the Connecticut Supreme Court. They secretly funded a massive publicity campaign to arouse the citizenry of Hamden to oppose the development as a threat to the "quality of life." Finally, they solicited and subsidized opposition by residents of Hamden (the "landowner defendants") before the HPZC and in the Court of Common Pleas, although they knew many of the claims had no merit.

In the spring of 1970, in response to plaintiffs' petition, the HPZC adopted regulations creating a regional shopping center zoning classification and approved the street layout plans sought by the plaintiffs. From the HPZC rulings, Hamden Plaza, Hamden Mart, and two of the landowner defendants, Melinda Daniels and George Neal (the "Neals"), took a total of five appeals to the Court of Common Pleas. It was well settled under Connecticut law then that the Plaza defendants lacked standing to take any of these appeals and the Neals lacked standing to appeal from the adoption of the zoning classification regulations.*fn3

Despite their initial success in the HPZC, the plaintiffs failed in their first attempt to secure a zone change for the Evergreen Avenue Property. In July 1970, the HPZC denied their application after the appearance in opposition of numerous landowners, including those made party defendants here. The Plaza defendants appeared and argued, among other things, that the HPZC should reject the application because the new mall would compete with the Mart and Plaza. At the heart of much of the local opposition to the plaintiffs' application was a massive publicity campaign secretly organized and funded by the Plaza defendants.

Plaintiffs succeeded with their second application for a zoning change, which the HPZC granted on June 21, 1971. The defendants then appealed from this HPZC ruling as they had from all the other decisions of the HPZC. In October of 1971, the appeals by the Plaza defendants and the landowners from the adoption of the regional shopping zoning classification, the street layout plans, and the granting of the ...


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