New York Village Is Considering New Permit Requirement For Eruvs

According to yesterday's Times Herald-Record, the Village Board of Woodbury, New York is considering a new law (full text) that for the first time will require residents to obtain a permit in order erect an eruv that extends into any right of way. Currently the village's growing Hasidic Jewish population has erected a number of eruvs, and the new law is directed at creating some uniformity among them. A permit application (including photos) will be required to describe the location and dimensions of any eruv, and provide written consent from all homeowners whose property it would cross. The eruv (usually made of fishing line, or of markers on utility poles) would need to be between 8 and 20 feet high, and translucent or the same color as the pole to which it is attached. Non-complying eruvs could not cross any public road, and existing non-complying eruvs that do cross public roads will need to be removed within 90 days of enactment of the new law. The proposed law would also regulate cell towers being placed on utility poles.

Suit Seeks To Protect Eruv In New Jersey Township

A suit was filed last week in New Jersey federal district court against the Township of Mahwah, NJ, seeking to prevent its use of a zoning ordinance that prohibits signs on utility poles as a basis to require Orthodox Jews to dismantle an eruv that was set up in a portion of the township.  The eruv, created by agreement with the local utility company, makes use of lechis (thin plastic pipes) on utility poles.  The complaint (full text) in Bergen Rockland Eruv Association, Inc. v. Township of Mahwah, (D NJ, filed 8/11/2017), contends that the township's enforcement actions target the Orthodox Jewish community's exercise of religion, and thus violates the 1st and 14th Amendments as well as RLUIPA. NorthJersey.com reports on the lawsuit. [Thanks to Steven A. Sholk for the lead.]

Hamptons Town Board Drops Opposition To Eruv

Since 2011, a Suffolk County, New York, Jewish organization known as the East End Eruv Association (EEEA) has been attempting to obtain approval to erect an eruv (a symbolic boundary) in three towns in the Hamptons. It has been opposed by a citizens group known as Jewish People Opposed to the Eruv. The clash between groups has spawned extensive state and federal litigation.  According to 27 East, on Tuesday EEEA moved significantly closer to success. The Southampton Town Board voted not to pursue an appeal of an adverse state trial court decision.  That decision held that the town's sign ordinance does not bar construction of the eruv. The town also will drop its federal lawsuit challenging the eruv on Establishment Clause grounds. The Town Board's decision will permit expansion of an eruv currently in  Westhampton Beach Village to also include the hamlets of Quiogue and Westhampton.

Decision Is Step Toward Success For Group Seeking To Erect Eruv In The Hamptons

In Suffolk County, New York, a Jewish group seeking to construct an eruv in parts of three towns in the Hamptons moved a step closer to succeeding when a state trial court judge ruled last week that the Town of Southampton Zoning Board of Appeals improperly invoked the local sign ordinance to prevent the construction.  New York Jewish Week reports:

Acting Suffolk County Supreme Court Justice Joseph Farneti ruled June 30 that the board was wrong when it affirmed a town inspector’s opinion that lechis are signs that fall within the town’s sign ordinance. Lechis are wooden or plastic strips affixed to telephone and utility poles to form the boundaries of an eruv, within which observant Jews may carry items on the Sabbath. The association had sought to put 28 of them on 15 poles.

Such a finding is “irrational and unreasonable in that it does not comport with the sign ordinance’s intent,” the judge wrote. “The Court finds that the boundaries are invisible as the lechis are not discernable. … Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.”

Farneti added: “It is well-settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use and every effort to accommodate the religious use must be made.”

The East End Eruv Association has been litigating in state and federal courts since 2011 in an attempt to get approval. (See prior posting.)

Legal Documents In Eruv Litigation Now Available Online

Beginning in 2011, individuals and groups opposed to Jewish organizations placing eruvs in three Long Island, New York towns have been involved in litigation attempting to prevent their creation.  Now O'Dwyers has created a page with links to all the legal documents and related media coverage of the lawsuits.

2nd Circuit Upholds Eruv Against Establishment Clause Attack

In Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, (2d Cir., Jan. 6, 2015), the U.S. Second Circuit Court of Appeals held that the Long Island Power Authority did not violate the Establishment Clause when it entered a licensing agreement permitting a Jewish organization to attach inconspicuous staves (known as lechis) to utility poles in order to create an eruv. Applying the Lemon test, the court said in part:

Neutral accommodation of religious practice qualifies as a secular purpose under Lemon.... No reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion.

Newsday reports on the decision.

Federal Court Says State Court Should Act First In Challenge To Eruv Zoning Decisions

East End Eruv Association v. Town of Southampton, (ED NY, Sept. 24, 2014), is the latest decision by a New York federal district court in challenges to the refusal by Long Island towns to permit a Jewish organization to construct an eruv.  The court held that the claim that zoning authorities acted arbitrarily and capriciously in denying an appeal and a variance should be decided in state court, and that plaintiffs' other five claims should be stayed pending that decision.  In a related decision, on the same day in the same case, the court refused to allow an organization known as Jewish People Opposed to the Eruv to intervene in the case.

Court Allows Eruv In Long Island Town

In Verizon New York, Inc. v. Village of Westhampton Beach, (ED NY, June 16, 2014), a New York federal magistrate judge gave at least a partial victory to the East End Eruv Association, a Jewish organization that is attempting to place an eruv in Suffolk County, New York. An eruv is a symbolic boundary, marked off with plastic strips (lechis) on telephone poles. Observant Jews may carry items within the eruv on the Sabbath without violating Jewish religious law.  In this case, Verizon and Long Island Lighting Co. granted the Association the right to use their poles for an eruv, but three municipalities objected.  The utilities sued for a declaration that they had the right to allow use of their poles for this purpose.  This opinion ultimately dealt with only one of the municipalities-- Westhampton Beach.  The court concluded that the utilities' franchise agreements do not limit their authority permit the eruv; the Transportation Corporations Law and the LIPA Act provide authority for the utilities to enter contracts for use of their poles; while Westhampton has authority to regulate utility poles owned by the utilities, it has not passed any regulations that prohibit attaching lechis to the poles.  27East and Jewish Week report  on the decision.