On appeal from Superior Court of New Jersey, Law Division, Hudson County, HUD-L-288-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and C.S. Fisher.
Plaintiff Stevens Institute of Technology ("Stevens") appeals from trial court orders granting summary judgment to defendants Ronald Hine, Aaron Lewit and Fund for a Better Waterfront ("Fund"), as well as from various other orders entered by the trial court prior to the grant of final summary judgment. Defendants cross-appeal from the denial of their application for counsel fees, costs and sanctions. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part and remand for further proceedings.
The disputes between the parties require that we balance the rights of plaintiff to protect its reputation and standing in the community and the rights of defendants to express their views on certain of plaintiff's activities. The disputes, moreover, occurred in the context of increasing development along the Hudson County waterfront, leaving a shrinking amount of land available either for private development or for public use.
The matter has a complex factual and procedural background which must be set forth in order to analyze the issues on appeal. Because we are considering an appeal from a grant of summary judgment, we view the facts in the most favorable light to Stevens. Atlantic Mut. Ins. Co. v. Hillside, 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
Plaintiff Stevens, a private institution of higher education organized as a not-for-profit corporation, is located in Hoboken on a campus overlooking the Hudson River. The Fund is also a not-for-profit corporation. The Fund's stated purpose, according to its certificate of incorporation, is "educational and legal efforts to improve the environment, the waterfront, the quality of life in Hoboken and neighboring communities." Its by-laws authorize it to engage in efforts directed to "1) improvement of the environment and quality of life along the Hudson River; 2) promotion of a public waterfront along the Hudson River fully accessible to and for the enjoyment of the public; and 3) advocacy of appropriate development along the Hudson River." Defendant Hine is the executive director of the Fund, and defendant Lewit is the president of the Fund.
During the late 1990's Stevens began the planning for the construction of a new six-story building on campus to be known as the Babbio Center for Technology Management. The selected site contained serpentine rock, which includes the mineral chrysotile. Chrysotile contains asbestos fibers, and when chrysotile is disturbed, it tends to break along its cleavage planes, releasing asbestos fibers. Stevens, aware of the presence of serpentine rock and that construction of the Babbio building would necessitate blasting, retained consulting and environmental engineers, PMK Group, to advise it as to the best method of proceeding.
After inspecting the site and conducting two different forms of testing, PMK issued a report to Stevens in February 1999 containing a number of recommendations, including "use of constant wetting of the intact rock at the point of excavation, as well as of the waste as it is generated and during the course of its handling on-site." The report also dealt with the question of disposing of the loose rock generated by the blasting.
The waste generated by the excavation of serpentine bedrock is not classified as an asbestos-containing waste subject to prevailing asbestos waste control regulations, nor is its handling subject to prevailing asbestos contracting regulations. Therefore, the waste rock is not subject to the packaging, transport and disposal requirements promulgated by these codes for "commercial" asbestos-containing waste.
Given the potential that the handling of this material will result in the release of some amount of fugitive airborne asbestos fibers, it is recommended that the rock waste be controlled during its transport and immediately landfilled. Specifically, we recommend that the rock waste:
(i) be kept wet during transport in secured, covered vehicles; and
(ii) be transported directly to a landfill where it would be dumped and covered on a daily basis without further crushing or other processing.
We are aware that such rock waste could be subject to stockpiling at a location other than a landfill, and could foreseeably be utilized as a component of a fill or ultimately sold as a component for some other bulk commercial product. It is our opinion that the waste rock's potential to act as a source of airborne asbestos fiber release as a result of its handling away from the excavation site constitutes a liability concern motivating this disposal scheme.
Those involved in the planning and construction of the Babbio Center were aware of these recommendations. The November 27, 2001, minutes of the meeting of the planning team, which included representatives of the contractors, contain the following statements:
9. Creamer and Terminal were requested to review their excavation plan with Stevens. Creamer has requested PMK's soil/rock profile . . . to assist them in this process.
10. The site needs to be well watered to avoid excessive dust. Stevens will perform air sampling of the site to insure asbestos threshold levels are not exceeded.
The importance of watering the site was again stressed to the contractor in a memo from the physical plant director of Stevens. "As a reminder, the PMK report dated 2/5/99 recommends, 'use of constant wetting of the intact rock at the point of excavation, as well as the waste as it is generated and during the course of its handling on-site.'"
At the same time that Stevens was proceeding with the planning and development of the Babbio Center, efforts were also under way to develop the large parcel of land at the northern end of Hoboken previously occupied by the Maxwell House coffee plant. The Fund took a strong interest in the various development proposals and worked closely with two of the prospective developers, Daniel Gans and George Vallone, to see to the inclusion of public park land as part of the development. Stevens also had an interest in participating in the development of this tract, which was in very close proximity to its campus. The minutes of meetings of the Fund's board reveal that the members opposed the proposals submitted by Stevens.
In late 2000, Stevens received approval from the Hoboken Planning Board to proceed with the Babbio Center. The record before us does not contain the proceedings before that board and whether any of the defendants in this matter appeared in connection with the Stevens application.
In the initial planning stages, Stevens envisioned the construction of a multi-level garage accompanying the Babbio Center. According to the record before us, Stevens revised its plans in this regard in light of the opposition such a garage generated in the surrounding community and replaced the multilevel garage with a one-level garage. Stevens nonetheless hoped in the future to obtain approval for such a multi-level garage and wanted to build the Babbio Center with a forty-foot foundation wall with that prospect in mind. In October 2001 the president of Stevens wrote the following letter to Hoboken's zoning officer:
As you know, Stevens Institute of Technology recently received Planning Board approval for a new Management Building with a 105-space garage structure below the building. Presently, we are hoping to construct a deeper foundation to the garage structure, with an overall depth of approximately 40 feet. Stevens takes this action at its own risk. We hope in the future to include this foundation area as part of a soon-to-be adjacent garage, which will be the subject of a new application.
If Stevens does not receive approval for the new garage structure, then the foundation of the Management Building will be nothing more than a foundation, with no access on entry points. No action by you or any city official to permit this foundation will be deemed by Stevens to be an approval to construct anything more than the approved 105-space garage structure below the Management Building. Further, Stevens will not hold the city or any official responsible for Stevens' potential inability to construct a larger garage structure, if same is denied by the Planning Board.
There is no indication in the record before us that Hoboken expressed any reservations to this approach, which we infer involved greater excavation and more blasting than would otherwise be necessary.
Construction did not commence immediately upon receipt of that approval. It was not until March 2002 that Stevens received an initial blasting permit to commence excavation of the foundation for the Center. Prior to commencing any blasting, the contractor notified the various entities that would potentially be affected, including the North Hudson Sewer Authority, Hoboken's Department of Environmental Services, Verizon, Hoboken's Water Company, Public Service Electric & Gas, and the Army Corps of Engineers. There is no indication in the record that the blasting continued beyond the six- to eight-week period initially envisioned.
Blasting commenced on the morning of March 11, 2002. The site, however, was not watered, as had been consistently recommended. According to the deposition of Roger Cole, who was the Vice President of Facilities and Support Services for Stevens, this was due to certain drought restrictions that had been imposed. Stevens had requested a waiver of these restrictions to permit watering of the site, but its request was denied. Stevens appealed that denial and was ultimately able to obtain approval from the Hoboken Board of Health and the New Jersey Department of Environmental Protection ("DEP") to commence watering.
Neighbors in the vicinity of the work observed dust clouds being generated by the blasting and contacted defendant Hine who began to investigate. He learned that the site contained serpentine rock and contacted several geologists to learn more about the nature of that substance. As a result of the information he obtained, Hine attempted to contact Cole, leaving a message asking whether Stevens was ...