|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
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
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
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
Spiro T. Agnew, 1968
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