Hine said Tuesday that the lawsuit is "baseless" and nothing more than an attempt to stop the Fund from speaking out in opposition to some the university's proposed projects. Hine promised to countersue for legal fees if the suit is not dropped. "I know exactly what this is about," said Hine. "They want to shut us up."
The suit centers on events and correspondences surrounding the excavation and the construction, which is currently underway, of the Babbio Center for Technology Management, a six-story 95,000 square-foot building that will be used for executive training and technology management programs. Excavation at the site began in March of 2002.
Since excavation on the project began, Hine and the FBW have confronted the private university via correspondences with the university and letters to the media and municipal authorities such as the City Council, mayor's office and Planning Board. The FBW has objected to the project for several different reasons, including charging that the project, especially its excavation, was an alleged safety hazard due to naturally occurring asbestos in the serpentine rock that the facility is being built into. To construct the building and to prepare for a proposed (but not yet approved) parking garage, the school excavated nearly 40 feet deep into the rock.
It is the asbestos issue that is the center of defamation litigation. The suit alleges that Hine and Lewit have engaged in a "malicious pattern of false and accusatory statements" when it came to asbestos in the rocks, in order create public hysteria and gain support against the project.
In a statement, the university states that the level of ambient asbestos at the site was not a significant health risk. "Stevens followed all established guidelines and did better than all legal standards for excavation of asbestos-bearing rock," reads the statement.
The asbestos in the green veined serpentine rock that makes up Castle Point is naturally occurring. According to the federal Environmental Protection Agency, asbestos is commonly found in ultramafic rock, including serpentine, and near fault zones. Asbestos is released from ultramafic and serpentine rock when it is broken or crushed.
During excavation on April 9, 2002, there was an asbestos reading that was above the state Department of Environmental Protection established guidelines for public safety. The DEP has a stringent standard that is used to determine whether children may re-enter a school building after asbestos has been removed or abated. At that point, the school received permission to begin watering the site daily to cut down on airborne particles. In addition to watering the site, Stevens supplied the city's Health Department and the DEP with daily air quality reports, none of which exceeded the DEP standards.
State DEP guidelines say that a single exposure to asbestos "does not imply an immediate health threat. Asbestos exposure becomes a health concern when high concentrations of asbestos fibers are inhaled over a long period."
But on April 24, the New Jersey Meadowlands Commission ordered a construction company hired by Stevens to stop dumping the rocks at the Carlstadt Landfill. The order, written by Monica Mianecki, the chief engineer for the Meadowlands Commission, told the construction company to remove any material that contains asbestos. The school had to then find another location to dump the rock. That original report was eventually refuted by Dr. Garry Karner, the head of Columbia University's Lamont-Doherty Earth Observatory. Karner's report was commissioned by the Meadowlands Commission, the organization that originally stopped Stevens from dumping.
"The logical conclusion is that the asbestos fibers are not an issue of public health in relation to either Castle Point or Carlstadt Landfill dumping," read Karner's report. By the time that this second report was written, the school had already finished excavation and dumped the rock at another site.
Hine and Lewit have also opposed Stevens' project for other reasons, such as believing the school did not go through the proper public process to get approvals for some of the construction. An independent investigation by a land use attorney hired by the mayor's office agreed with Hine and Lewit. That matter is still being debated in court.
'First Amendment' vs. shouting 'Fire'
Hine, Lewit and the FBW's lawyer, Renee Steinhagen, said on Feb. 20 that the suit is an unsuccessful attempt to silence the group.
"The sole purpose of this litigation is to inhibit the Fund for a Better Waterfront and its leaders from exercising their First Amendment right of free speech," said Steinhagen. "Stevens seeks to exclude this organization and its principals from engaging in the public debate over the school's development plans."
Hine said Thursday that he continues to support his position and previous statements when it comes to the naturally occurring asbestos at the site.
"We stand behind everything we said," said Hine. "There was nothing inflammatory in those statements. We very carefully read, examined and studied all the reports made available to us and presented a straightforward accounting of those reports. We just wanted to get the facts out to the public."
In a statement Monday, the university contended that free speech, as presented in the Constitution, has certain common-sense legal limitations. Their attorneys equated Hine's statements to yelling "fire" in a crowded theater.
"Of course, Hine and Lewit claim that there was a 'fire,' i.e., that Stevens placed the Hoboken community's health in jeopardy," said the school in its statement. "In making their unsubstantiated claims, however, Hine and Lewit's statements are contrary to the testimony of expert geologists and the conclusions of public officials including the Meadowlands Commission and the state DEP. These experts and officials clearly see Hine and Lewit's claims as false."
But Steinhagen has described the lawsuit a "SLAPP" suit. SLAPP is an acronym for Strategic Lawsuit against Public Participation.
Edward Lloyd, the director of the Environmental Law Clinic at Columbia University and co-counsel for the FBW, encouraged the university to drop the suit.
"All too often, real estate developers try to use these frivolous lawsuits to bully community advocates who oppose their construction projects," Lloyd said. "Until today, it was unheard of for a university, an institution dedicated to the promotion of an open forum for spirited debate and intellectual freedom, to bring one of these strong-arm suits. Stevens must now do the right thing and withdraw its suit against the FBW."
Stevens, in its statement, said that FBW officials were consciously using the public's fear of the known carcinogen to gather support for opposing the project. "Hine and Lewit have thus far been able to exploit the public's natural and understandable fear of asbestos," reads the statement, "to obscure the evidence which plainly demonstrates that Stevens did not endanger the public in any manner."
Attacking FBW's reputation
The lawsuit also digs into the reputation of the FBW. Stevens contends that the Fund for a Better Waterfront, the organization previously known as the Coalition for a Better Waterfront, began as a "legitimate organization, dedicated to the concerns of Hoboken's waterfront."
"Once, there was true community involvement in the organization's decision-making," reads the statement. "Those times are well past, however. CBW - now FBW - has long ago been co-opted by Ron Hine. He is not elected to his office, and there are few if any checks and balances on his activities by those few who are directly involved with FBW affairs."
Stevens contends that the FBW is no longer a community activist organization but "it's in fact a small special interest group living off the earlier group's reputation. Its officers are determined to answer to no one, not the non-profit regulatory agencies, nor the community it purports to represent."
Hine said that the university is trying to paint a picture of the FBW that is not accurate. "Our support keeps growing every year," said Hine. "All of our events are well-attended, and we have hundreds of people that contribute every year. They are trying to present us as a small dwindling group. They're just making that up. There's no truth to that."
He added that the FBW is a non-profit group with a 10-member volunteer board of directors.
Hine also said that this lawsuit will not stop him or his associates from speaking in opposition to the university in the future. "Our lawyers tell us not to refrain from participating in the public debate over issues of the parking garage or other development projects on the waterfront," he said. "We will continue to pursue our goal of completing the waterfront park, and we're not about to back down yet."