Court throws out final count of Stevens’ case against FBW

(February 15, 2005) Critics of real estate development breathed a sigh of relief on February 9, 2005 when New Jersey Superior Court Judge Frederick Theemling threw out the final count of a two-year old case against the nonprofit organization, Fund for a Better Waterfront (FBW). Throughout 2002, FBW criticized plans by Stevens Institute of Technology to expand its campus to the waterfront. In January of 2003, Stevens retaliated with a lawsuit charging the group, its Executive Director and President with defamation and intent to harm the school.

From the beginning, the FBW legal team has argued that this lawsuit is a frivolous action that aims to silence and chill the constitutionally protected free speech of citizens engaging in a public debate. In a February 10, 2005 article, the Star Ledger quoted FBW attorney Renee Steinhagen who said, “This is a very clear case of a very powerful institution choosing to use its resources – which, by the way, are raised for a nonprofit educational mission – to try to suppress any community criticism of their development activities.”

Judge Camille Kenny, who presided in this case for the first year and a half, dismissed the defamation count in July 2004, concluding that none of the statements made by the defendants met the Court’s standard for defamation. Theemling’s decision eliminated a catch-all prima facie tort, ruling that Stevens had failed to produce anything beyond the defendants statements that would show the school had been intentionally harmed by FBW. Citing LoBiondo v. Schwartz, Theemling stated that the higher Courts have determined that a prima facie tort cannot be sustained once the defamation claims have been barred.

In addition to Renee Steinhagen, the Executive Director of New Jersey Appleseed Public Interest Law Center, the FBW defense team consists of Edward Lloyd, the Director of Columbia Law School Environmental Law Clinic and Ira Karasick. Karasick successfully argued the landmark 1999 decision of LoBiondo v. Schwartz where the New Jersey Appellate Court, in a strongly worded opinion, dismissed the plaintiff developer’s defamation suit against community land-use advocates.

Lawyers for Stevens, on the other hand, have attempted to portray Ron Hine, FBW’s Executive Director, and Aaron Lewit, its President as extremists who lied in order to create a false alarm about a nonexistent health hazard. During oral arguments on February 4, Stevens attorney Charles Fisher contended that Judge Kenny ruled that a trial was required for the prima facie tort claim. Judge Theemling interrupted Fisher stating, “that is not what Judge Kenny ruled.” Theemling had listened to all of Judge Kenny’s oral decisions on tape. Theemling’s ruling granted summary judgment to the defendants on the final count, thus eliminating any need for a trial by jury.

Stevens has insisted from the beginning that FBW, Hine and Lewit be brought to trial for their statements. Judge Kenny ruled that most of the statements were not made with reckless disregard for the truth and thus could not be construed as defamatory. She ruled that Stevens had not been damaged by the final three statements and thus, the final standard for defamation had not been met. These three statements were as follows: “no monitoring has taken place as (the excavation proceeds)” (on FBW’s website for 1 day), “Nearly every day significant amounts of chrysotile (white asbestos) have been detected by Steven’s own monitoring system” (Hine’s letter to Mayor) and “(Stevens) proceeded to dump the hazardous material in the Meadowlands illegally” (Hine’s letter to the editor in the Hoboken Reporter). FBW presented evidence as part of the Court record that Hine had information from Stevens officials, credible advice from experts and documents from the New Jersey Meadowlands Commission upon which he based these statements.

FBW attorneys estimate that legal fees to defend FBW now exceed the $700,000 mark. During the two years of litigation, countless motions have been briefed by both sides. Stevens unsuccessfully challenged four of Judge Kenny’s rulings at the Appellate Division level. Stevens attorneys spent seven days deposing the defendants and five days deposing third parties. FBW attorneys deposed the former Vice President of Stevens and also a public relations consultant advising Stevens. Thousands of pages of documents, including emails, website articles, minutes and technical reports have been exchanged.

Considerable evidence in the record contradicts Stevens’ claim that no health hazard ever existed. In his deposition, Assistant Director of the Hudson Regional Health Commission, Gary Garetano described the excavation operation as “a nightmare” and stated, “I determined that the concern regarding asbestos, the presence of asbestos at the site, was valid and a concern regarding potential emissions of asbestos were valid.” Michael Mooney, a geologist who advised Hine and Lewit stated in his deposition, “when I drove by there, they were actively drilling. The air was full of dust and there was no watering going on at that point in time. . . many cars around that area were covered with dust. . . what they were doing was very dangerous.” Mooney went on to state, “[Aaron Lewit] asked me why I should be concerned about that and I said because the rock they are drilling is loaded with asbestos.”

Stevens has claimed from the beginning that the 35,000 cubic yards of serpentine rock that they blasted and carted away from its campus contained only trace amounts (less than 1%) of asbestos. But a report from Stevens’ own expert found that the rock was comprised of about 5% asbestos. A later report authored by geologist John Puffer and commissioned by the New Jersey Meadowlands Commission stated, based on his analysis, that the 5% chrysotile asbestos content is underestimated by about 20%. Stevens also claimed that the air monitoring reports proved that no health hazard existed but this has been called into question by a number of experts who advised the defendants, including industrial hygienist Edward Olmsted who stated in a certification, “Air sampling alone [is] not sufficient to accurately characterize the degree of risk.”

When Hine and Lewit first learned of the presence of asbestos in the rock in April 2002, they immediately filed a complaint with the Hoboken Board of Health. At that time contractors for Stevens had not followed any of the recommendations of Stevens’ engineering consultants, PMK Group, except for conducting daily air monitoring. The rock was not being hydrated to control the dust. Trucks were not being covered. Workers wore no respirators and were not equipped with personal air monitors to measure their exposure to asbestos at the center of the excavation site. After Hine and Lewit filed the complaint, the Board of Health issued an order requiring Stevens to water the work site and cover the trucks. Stevens complied with this order that resulted in a much safer operation as reflected in the asbestos levels in the air reported by the air monitoring.

Stevens Institute’s waterfront proposals for Maxwell House, Union Dry Dock and the Center for Maritime Systems (between Sinatra Park and Castle Point Park), all contested by FBW, have failed to materialize. The one project that has moved forward is a 725-car parking garage proposed at the excavation site across from Sinatra Park. The Hoboken Zoning Board approved this massive waterfront garage in October of 2004 after eight months of hearings. The portion of the garage situated under the Babbio Center has been built despite the lack of prior approval by the zoning or planning boards. FBW has challenged the Zoning Board approval for the garage in Superior Court in a case that will also be heard by Judge Theemling. The hearing is scheduled for May 6.

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