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SLAPP Happy Rock Follies
March 7, 2005: The old axiom that for every force there is a counter force holds true even in New Jersey. Where many pols and players believe laws don't apply to the powerful. But history abounds with stories of thunder lizards who found themselves unexpectedly counter balanced. Think Tyrannosaurs Rex.

A more Rex heavy place than Hoboken, New Jersey is hard to imagine. This hot hunk of mile square real estate is the jewel of Hudson County's "Gold Coast". Just across the river from Manhattan. By the early 80's post-industrial Hoboken had rolled over for redevelopment: it never stood fully upright again. The political voice of individual citizens got lost in the roar of developer dollars. But at election time in Hudson County, pols promise their hearts belong to the citizenry. No more tax abatements and zoning variances will be awarded. Nor will any more public space be surrendered. But how money do talk! Apres election day citizens walk. Past the latest towering infernal.

Hobokenites have stopped waiting for a Great Reformer. The Mile Square City is chock full of fed up citizens who know how to get it done. Last November voters passed an anti pay-to-play ordinance. In the face of stiff opposition from assorted pay-to-players. The ordinance limits the amount of money anyone doing business with the city can contribute to a local politician. And there's more happy news from Hoboken: on February 9th, after 2 years of court dates, filings, depositions and a blizzard of paper, the New Jersey Superior Court tossed out the lawsuit filed by Stevens Institute of Technology against Hoboken activists Ron Hine and Aaron Lewit, and Fund for a Better Waterfront (FBW) the group Hine and Lewit represent. Many believe the Stevens' suit was a case of SLAPP.

SLAPP stands for strategic litigation against public participation. SLAPP suits are most typically aimed at groups and individuals who raise objections to development projects based on issues such as land use and environmental concerns. In response, corporations or developers file lawsuits claiming public statements made by the protestors are defamatory and caused them economic hardship. Courts tend to see such suits as an attack on free speech and often strike them down. But the aim of a SLAPP is not just legal victory: it's a retaliatory move with the intent of tying up foes in long costly legal battles. Since the most typical SLAPP launchers are corporations and developers, the action by Stevens Institute of Technology, a university, against Hine, Lewit and FBW was unusual. However, what touched off the suit was a dispute over a Stevens development project. One which raised issues of land use and environmental concerns.

By the late 70's the Hoboken waterfront was largely derelict. Only the ghost of the bustling docks depicted in Elia Kazan's "On The Waterfront" remained. Shipping facilities and factories were either closed or closing. Swaths of land contained nothing but the detritus of manufacturing and dumping mingled with weeds and wild flowers. Ailanthus, the ubiquitous urban pseudo tree, flourished in little forests. Office workers hung out on the decaying piers during lunch hour. On weekends entire families picnicked and fished. Some even ate what they caught-- despite glow-in-the-dark pollution levels. Couples strolled and kissed against the spectacular backdrop of Manhattan. Via neglect, Hoboken's waterfront had turned into a post-industrial park. It wasn't totally safe, particularly after dark. Nor was it sanitary. But it was certainly open to all.

As redevelopment took hold in Hoboken in the 80's, it centered on the waterfront. What was lost to blue collar employment was reclaimed by rows of luxury condo and apartment towers. Inhabited largely by people whose professional lives lay in New York City. As the towers consumed more and more waterfront, public access diminished. Despite the fact that the area was being developed with huge amounts of public assistance, in the form of federal and state grants and secured loans. Plus assorted forms of tax breaks at all government levels. Including county and municipal.

Fund for a Better Waterfront, in an earlier incarnation as Coalition for a Better Waterfront, was born in the early 90's in response to the threat to public space. Ron Hine, FBW's executive director, has been with the group since its inception. Aaron Lewit, the group's president, has been on board for 7 years. FBW has taken on some of the most powerful developers in the Northeast and in a small city dominated by the same, has been remarkably effective. The personal character of Ron Hine has a lot to do with that success. Hine is the sort of individual often found at the heart of effective public advocacy groups. When others get tired and walk away, they hang on like pitbulls. Such individuals are frequently abrasive and single minded. Not loved by all. Ron Hine has his detractors. But also many supporters. Who say that if it weren't for FBW and the citizens it has helped rally, the Hoboken waterfront would be a walled city. Whereas almost 75% of it is now public park. Ultimately, the FBW vision is of one long unbroken park stretching along the entire Hoboken waterfront.

Though the majority of Gold Coast developers are new to Hoboken, Stevens Institute of Technology, a private nonprofit institution, has been in the city since 1870. Stevens sits on a steep hill above the waterfront, on a considerable piece of property. Stevens is not a large university (currently 3,523 enrollment) but as a prestigious and enduring institution, is important to Hoboken. When the city's image was at its most battered, Stevens could still be cited with pride. Though perhaps not the same big frog of pre Gold Coast days, Stevens has considerable local clout. As it does on the wider political level of county and state. Current president Harold J. Reveche' has expressed interest in becoming the Republican candidate for New Jersey governor in 2009. Congressional appropriations for Stevens tend to be generous. Yet in March of 2004 Moody's Investor Service downgraded Steven's credit rating to Baa2, two notches above junk-bond status. To be followed in May by an almost equally poor rating by Standard & Poors, which noted a consistent pattern of operating losses. According to a piece called "Uneven Stevens" in the March 4th issue of The Chronicle of Higher Education, the operating deficits were a surprise to faculty members: Stevens' own annual reports showed surpluses in the years when deficits occurred.

Harold J. Raveché has been president of Stevens Institute since 1988. When Mr. Raveché received a 42-percent raise in 2002 (bringing his total compensation to almost $700,000 yearly) it put him among the top 10 highest paid college presidents in the nation. Other perks included over $1.2-million in low-interest loans from the university. Under the leadership of President Ravaché, Stevens moved from a somewhat moribund condition into expansionist mode. Including assorted construction projects. By 2001 Stevens had a wish list of waterfront development projects and in October, began construction of the Lawrence T. Babbio Center for Technology Management on a piece of campus land called Castle Point. Located in a densely populated neighborhood on a bluff overlooking the waterfront. Plans for the Babbio Center included a connected parking garage that would accommodate 725 cars. The garage was to be multi-tiered, with its open layers facing Manhattan and the Hoboken waterfront. Giving 725 cars a killer view.

Ron Hine, Aaron Lewit and FBW objected to Stevens' proposed waterfront projects. On the grounds Hoboken's opportunity for a continuous waterfront park would be lost. By early 2002 Hine, Lewit and FBW were also raising issues about the Babbio Center and the proposed parking garage. As were a great many other Hoboken residents-- including members of the city government. For one thing, it seemed as if Stevens had already begun excavation for the parking garage despite the fact that at the time, the city's planning board and zoning board had only approved the Babbio Center. And Ron Hine, Aaron Lewit and FBW pointed out that when excavating the Castle Point site, contractors hired by Stevens blasted into serpentine rock, which contains naturally occurring asbestos. They also claimed that the rock, upon being blasted, released a dangerous level of asbestos dust into the air and that the site did not receive appropriate abatement treatment. Plus, FBW publicized the fact that 35,000 tons of the blasted rock had been carted off and dumped in the Carlstadt Landfill in the Meadowlands section of Jersey.

FBW and its officers made these claims in letters to the editors of local papers and to politicians, on the FBW website and in conversation with Hoboken residents. When discussing the danger of asbestos at Castle Point, FBW cited credible experts. When Stevens Institute refuted the dangers they too cited credible experts. In general, the threat that asbestos in its raw, naturally occurring state poses is open to more dispute than that of the milled down variety once used in construction. Sincere opinion exists on both sides of the issue.

But though Stevens was informed by its own engineering consultants in 1999 that asbestos existed in the rock beneath Castle Point, it was only after blasting occurred and dumping took place, that Stevens obtained the expert opinion of a geologist at Columbia University supporting their claim that the material at the excavation site and landfill was not hazardous. But by that time, the Meadowlands Commission had blocked Stevens from dumping any more blasted rock at the Carstadt landfill. Which meant Steven had to take it to another facility. Furthermore, despite the fact that their own consultant had recommended Stevens not sell any of the blasted rock, saying "loss in recycle value would be nothing vs. the owners' subsequent headaches" Stevens had a sales deal in the works. Which went south due to the publicity surrounding the asbestos issue. According to Stevens, the dust-up about that blasted Castle Point rock ultimately cost them over one million dollars.

If officials responsible for development and construction policy at Stevens hadn't assumed their handling of a material credibly perceived as dangerous wouldn't be scrutinized, they could have saved Stevens a lot of money. And while Stevens made no mention of asbestos on their initial application to the Hoboken Building Department for a construction permit for blasting at Castle Point, Hoboken activists have a habit of looking into environmental matters for themselves. So foresight would have been wise. But instead of kicking their own butt for not covering it with sufficient expert opinion, Stevens officials blamed the million dollar hit on FBW, Ron Hine and Aaron Lewit. Who meanwhile continued to raise objections to ongoing and upcoming Stevens projects in the usual persistent fashion.

In early 2003, Stevens filed suit against FBW, Hine and Lewit. Charging them with defamation for statements regarding the asbestos issue and seeking some 1.3 million dollars in damages. Attorneys for FBW included Renee Steinhagen, Executive Director of the New Jersey Appleseed Public Interest Law Center and Ira Karasick, who won a victory in New Jersey appeals court in the widely cited SLAPP case of LoBiondo v. Schwartz. Also serving as co-counsel was Edward Lloyd, Director of the Environmental Law Clinic at Columbia Law School. The FBW attorneys identified the Stevens suit as a SLAPP suit. Requesting dismissal of what they called a frivolous lawsuit filed with the intention to "exclude this organization and its principles from engaging in the public debate over this school's development plan".

Stevens responded publicly in a 02/24/03 press release. Claiming that the FBW defense team only wanted to have the case dismissed as a frivolous law suit in order to be legally able to counter- sue.(In other words, more money might follow those blasted rocks.) In its statement Stevens acknowledged that "there is a considerable burden of proof in a defamation case in which an institution seeks redress against an individual and U.S. courts strongly favor erring on the side of protected speech" and that "this approach is healthy for our society.". To prove their suit wasn't just an attempt to squelch the speech of a stinging gadfly group, the Stevens press release stated their beef wasn't merely with the "false and accusatory statements" made by Ron Hine and Aaron Lewit, but with their "true intention" in making them. The suit would lift the curtain on a "malicious pattern" of statements made "WITH INTENT (Stevens' emphasis) to do harm". Plus the case would shed "significant light on the clandestine activities of Hine and Lewit".

A taste for gothic romance obviously lives at Stevens. Or at least at the News Service of the Office of Development and External Affairs. One can imagine the cover of "The Secret of Castle Point". In the foreground a terrified young woman flees a looming parking garage, beneath the watchful eyes of 725 cars. While under a nearby twisted tree sinister gadflies plot with shadowy hooded figures. Alas. The Stevens case never delivered the whammy the press release promised. To cut to the chase, after two years of court dates, filings, depositions and a blizzard of paper, Stevens failed to present a compelling picture of an FBW conspiracy to blacken the Stevens name and do them financial harm. But they did deliver quite a page turner. At court appearances, and in various statements, representatives for Stevens conveyed that eventually, ALL would be revealed.

From the thin stuff of some iffy and long gone dealings between Ron Hine and a couple of developers who coveted a waterfront project that Stevens also coveted, hints of a dark tale were spun. About how these developers had promised Hine a piece of the waterfront for the FBW park project. In exchange for FBW wounding Stevens and throwing a cape of community credibility over the rival developers' plans. Simultaneously-- and paradoxically-- Stevens painted the community credibility of FBW as small; and as an Oz-like illusion perpetuated by Ron Hine and a few hench-people. Overall, the picture of FBW as presented by Stevens veered between that of a powerful force out to cripple a vulnerable institution, and a small group of malicious sourballs that few took seriously as public advocates.

But despite the allegations of Stevens re the hidden motives of FBW, Ron Hine and Aaron Lewit, the actual charges of defamation were proved bogus in a series of court hearings. Several of which took place before Judge Camille Kenny of New Jersey Superior Court in Hudson County. Judge Kenny tossed out the defamation counts; citing the First Amendment rights of individuals and groups to speak out on matters of community concern. She also pointed out that the defendants had consulted with geologists and experts before making claims about asbestos and the Castle Point excavation. And that the statements that Stevens objected to were either true, subject to opinion or not made with reckless disregard for the truth. Nor had the statements that supposedly caused financial hardship for Stevens done so. However, at the final July 20th hearing before Judge Kenny, she left one count of the complaint standing, which could be pled as a prima facie tort. This allowed Stevens one more chance to make its case in State Superior Court. Though Judge Kenny acknowledged that the remaining count, "did not contain any additional facts beyond those Stevens alleged in its claim of defamation".

On February 4th of this year, Stevens Institute attorney Charles Fisher of the Princeton firm of Windels, Marx, Lane & Mittendorf appeared in State Superior Court in Hudson County, to argue the prima facie tort before Judge Frederick Theemling. Fisher focused on intention. Arguing that FBW had engaged in a "larger scheme to damage Stevens" by "egging on others to disparage Stevens" and by "reaching out" to reporters. In his arguments Fisher presented no new revelations about the "larger scheme". On February 9th New Jersey Superior Court Judge Frederick Theemling threw out the final charge in the Stevens lawsuit against FBW, Ron Hine and Aaron Lewit.

Some-- including Stevens-- interpret the wording of Judge Theemling's decision as leaving room for appeal. Since Theemling opined that a jury could possibly be made to conclude that FBW had "mounted a deliberate attack against Stevens in an attempt to force the Institute to devote a portion of its land to the proposed waterfront park". Which sounds as if a jury would have to speculate on what was in the hearts and minds of Ron Hine and Aaron Lewit when they made statements which Judge Camille Kenny declared to be either true, subject to opinion or not made with reckless disregard for the truth.

As to what was in the heart of those at Steven's Institute, it's interesting to note that no action was brought against anyone who was "egged on to disparage Stevens" or the reporters that FBW reached out and touched. Since the eggees were being controlled by hypnotists Hine and Lewit, Stevens may have decided a pass was appropriate given the absence of free will. But what about the newsmedia? After Dan Rather and CBS ran the dummy document story about President Bush and his National Guard Service, CBS was taken to task. There was talk of a lawsuit. Dan got the can. The newsmedia has a professional responsibility to spot defamation. You'd think officials at Stevens would want to hold reporters' feet to the flame for falling in with FBW's "larger scheme". The fact that FBW and its officers were Stevens' sole target is one of the many things that makes their suit look like a SLAPP. And losing the case makes launching it look like another bad call-- just like those dad-blasted rocks.

Carola Von Hoffmannstahl-Solomonoff

"We build castles in the air and sometimes, we put foundations under them."

Erle Stanley Gardner, The Case of the Real Perry Mason, Dorothy B. Hughes, 1978

"You can't hit my team in the groin and expect me to smile about it."

Spiro T. Agnew, 1968

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Copyright (c) 2005 by Carola Von Hoffmannstahl-Solomonoff. This material may be freely distributed subject to the terms and conditions set forth in the Open Publication License. This license relieves the author of any liability or implication of warranty, grants others permission to use the Content in whole or in part, and insures that the original author will be properly credited when Content is used. It also grants others permission to modify and redistribute the Content if they clearly mark what changes have been made, when they were made, and who made them. Finally, the license insures that if someone else bases a work on this Content, that the resultant work will be made available under the Open Publication License as well.

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