FBW appeals to NJ Supreme Court asking for sanctions

(July 2007)

Today, a three-judge panel of the Appellate Division of New Jersey Superior Court affirmed major portions of the trial court’s dismissal of claims by Stevens Institute of Technology that statements and actions by a local advocacy group, the Fund for a Better Waterfront (FBW), defamed the school and caused harm to its reputation and business activity.

The Appellate Division affirmed the trial court’s dismissal of Stevens’ prima facie tort claim saying that it was duplicative of their defamation claim. It agreed with FBW that its concerns about the health hazards of asbestos fibers that resulted from Stevens’ blasting were constitutionally protected opinion. The Court agreed that FBW played no role in the actions of the Meadowlands Commission in preventing the further disposal of asbestos-containing rock from the Stevens site and requiring the rock to be covered in place. In addition, the Court did not disturb the trial court’s finding that none of the allegedly defamatory statements attributed to FBW could have caused any damage to Stevens.

The three Judge Appellate Court panel, however, remanded a portion of the case to the trial court for further discovery and the deposition of George Vallone and Daniel Gans who developed the Maxwell House site that Stevens Institute had a competing plan although the school held no economic interest in this property.

The Appellate Division did not decide whether the two counts of Stevens’ Complaint which were thrown out by the trial court amounted to frivolous claims which should have lead to sanctions against Stevens and its attorneys. FBW has been forced to marshal more than one million dollars of attorneys’ time to fight off this frivolous litigation.

The Appellate Division panel heard oral arguments twice in this case, the second occurring on January 18, 2007. Attorneys defending FBW are currently appealing this case to the New Jersey Supreme Court, asking for sanctions against Stevens and its attorneys.

According to one of the defendants, Ron Hine, the Executive Director of FBW, the Court erred in its failure to determine that this suit was a SLAPP, an acronym for Strategic Litigation against Public Participation. In other words, according to Hine, “The sole purpose of this legal action was to destroy and silence an organization that had actively criticized Stevens’ development plans.”

In 2001, the Fund for a Better Waterfront (FBW) became a vocal critic of Stevens Institute after it unveiled extensive plans to extend its campus onto Hoboken’s waterfront. The public debate heated up considerably in March 2002 as FBW complained of a potential health hazard caused by the blasting of some 30,000 tons of serpentine rock that contained naturally occurring asbestos at the Stevens’ campus to make way for a multi-story waterfront parking garage.

In March 2002, FBW wrote an editorial charging that Stevens Institute’s plans to build on several waterfront sites would destroy the opportunity for Hoboken to complete its proposed continuous waterfront park. That same month, Stevens Institute began the excavation of the serpentine rock on its campus to make way for a 725-car parking garage. The construction site is located in a densely populated, urban environment, adjacent to two academic buildings and across the street from a public soccer field and a little league field. A month later, Ron Hine discovered that this rock contained asbestos (known to Stevens but not revealed to the public or any public officials) and immediately posted an article on the organization’s website. Hine and FBW President Aaron Lewit then filed a complaint with the Hoboken Health Department as the blasting continued sending dust into the air that settled on nearby playing fields. During the first month of operation, the contractor failed to hydrate the rock that was being blasted on a daily basis.

In January 2003, Stevens Institute filed suit against FBW for a series of statements made by its Executive Director and its President regarding the release of asbestos into the air and dumping of the serpentine rock in the New Jersey Meadowlands. After 17 months of depositions, discovery and the creation of a voluminous court record, the trial court dismissed all of the defamation claims made by Stevens Institute in this lawsuit, citing the First Amendment rights of the defendants to speak out on an issue of public concern. Today’s decision upheld most of the lower court’s rulings.

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