Judge tosses developer O'Neill's suit against environmental activists

A Pennsylvania judge has dismissed a lawsuit filed by developer J. Brian O’Neill against an environmentalist and local blogger, saying activists have a First Amendment right to campaign against  projects even if it prompts the loss of millions of dollars in delays.

At issue was a civil suit filed by O’Neill against Maya Van Rossum and her Delaware Riverkeeper Network, as well as Carla Zambelli, who runs a local blog. O’Neill is attempting to build 228 housing units on a former industrial site known as Bishop Tube in East Whiteland Township, Chester County.

The Delaware Riverkeeper Network is referring to the case as a SLAPP suit — a strategic lawsuit against public participation, which is designed to attack critics.

In the lawsuit, O’Neill claimed that van Rossum and Zambelli “conspired to engage in a campaign of misinformation that is designed to mislead” residents and officials into believing that redevelopment of the brownfield site would put people at greater risk of exposure to contaminants.

O’Neill maintained that he and his Constitution Drive Partners LP “suffered significant monetary harm in an amount in the tens of millions of dollars” as a result of van Rossum’s and Zambelli’s actions. He sought $50,000, plus lawyers’ fees, costs, and damages.

But Chester County Court Judge Jeffrey R. Sommer dismissed the case this week, writing: “This is what we call constitutionally protected free speech,” particularly when it comes to someone trying to petition a government agency.

Van Rossum’s group had circulated a flier titled “Urgent Call to Stop Development on Toxic Land” that outlined how Bishop Tube, which manufactured stainless-steel tubes at the site for decades, had contaminated the ground with toxins.  She also spoke at local government meetings.

Meanwhile, Zambelli ran the chestercountyramblings.com blog, which echoed Van Rossum’s work.

“Mr. O’Neill should be ashamed of himself for misusing the law to threaten people into silence and seeking a judgment that would strip them of their First Amendment rights to free speech and to petition their government for appropriate action,” said a statement by van Rossum and the Riverkeeper Network.

O’Neill could not be reached immediately for comment.

Essentially, Sommer found that the environmentalists had a right to make their claims as part of the protected right to petition government, because they were attempting to influence the state Department of Environmental Protection.

O’Neill did not contend that the fliers and blog were against the project. Rather, his suit said, he objected to what he called false claims that frightened residents and officials, causing delays.

Specifically, the suit singled out statements from a flier that redevelopment of the site would  “expose us to more of the toxins and put 200+ homes on the contaminated land!!!” and that  “if this development happens your community could be on the receiving end of more contamination as the toxins make their way through our local waterways and water table.”

The suit said those claims were “materially false.”

At issue is the extent of the cleanup proposed.  The groundwater beneath the development site was contaminated by decades of the steel-tube manufacturing process, which left behind, among other pollution, chlorinated solvents. The pollution spread beyond just the initial manufacturing site and into waterways, including nearby Little Valley Creek, according to the suit.

O’Neill’s Constitution Drive Partners did not pollute the site but plans to clean up soil above the water table where it is building and according to DEP regulations. The company  said previous owners, not O’Neill, were responsible for cleaning groundwater under the development site and downstream.

But activists want all pollution cleaned up before any development occurs. Sommer found that the concerns of activists were not baseless.

“Given that there is no dispute regarding the fact that the groundwater contamination on the site exists and that it has spread beyond the site, Delaware Riverkeeper Network’s concern cannot be objectively baseless.” Sommer wrote. “The dispute remains over who is responsible for cleaning it up and to what degree. That question is not before the court at this juncture.”