Posted by: Patricia Salkin | November 17, 2014

Fed Dist Court in NY Declines Supplemental Jurisdiction over Article 78 Claim Regarding the Establishment of Eruvs Pending State Court Action

Residents on the East End of Long Island sought to establish an eruv-an unbroken delineation of an area-which would allow members of the Jewish faith with certain religious beliefs to carry or push objects from place to place within the area during the Sabbath and on certain holidays. The demarcation of the eruv may be created by using telephone poles, utility poles, wires, and existing boundaries, and by attaching wooden or plastic strips known as “lechis” to the sides of the poles. Plaintiffs East End Eruv Association, Inc. (“EEEA”), Deborah Pollack and Simcha Pollack (collectively, “Plaintiffs”) sought to have the lechis placed within defendant the Town of Southampton (“Southampton”) to eventually become part of a larger eruv that also encompasses the Village of Westhampton Beach (“Westhampton Beach”) and parts of the Village of Quogue (“Quogue”) (collectively, the “Municipalities”). Plaintiffs alleged that defendants Southampton and the Town of Southampton Zoning Board of Appeals (“ZBA”) (collectively, “Defendants”) have unlawfully prevented Plaintiffs from establishing an eruv, and Defendants made a motion to dismiss.

Plaintiffs filed the instant action against Southampton and the Southampton ZBA on August 27, 2013. The Complaint asserts six causes of action: (1) a violation of the First and Fourteenth Amendments to the United States Constitution based on Defendants’ actions in denying Plaintiffs their rights to freely practice their religion; (2) a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, based on Defendants’ actions in failing to uniformly enforce Town laws in a manner that treats a religious assembly or institution on less than equal terms with a non-religious assembly or institution; (3) a judgment declaring that “(a) there is no local, state, or federal law that either prohibits the affixation of the lechis to certain poles in Southampton or that requires Municipal approval for such attachments, including a declaration that § 330–203(B) of the Code of the Town of Southampton is inapplicable to the lechis, and (b) Verizon and LIPA should therefore be free and clear to implement contracts to construct the Eruv”; (4) a violation of 42 U.S.C. § 1983 based on Defendants’ actions under color of State Law in depriving plaintiffs of their “rights, privileges or immunities secured by the Constitution and the laws of the United States”; (5) tortious interference with EEEA’s contracts with Verizon and LIPA whereby Verizon and LIPA agreed to allow EEEA to affix lechis to Verizon’s and LIPA’s poles to complete an eruv; and (6) a declaration that the ZBA’s denial of the EEEA’s appeal and variance application was “arbitrary and capricious” and contrary to New York law and directing the ZBA to issue any necessary approvals and permits to allow EEEA to construct the eruv. Defendants argued that Plaintiffs’ First, Third, Fourth and Sixth Causes of Action all arise under Article 78 of the N.Y. C.P.L.R. (“Article 78”) and should therefore be dismissed on jurisdictional grounds.

Article 78 of the CPLR provides that a party is entitled to relief from a local zoning decision that is “arbitrary and capricious” or is not “supported by substantial evidence.” N.Y. CPLR §§ 7803(3)-(4) (McKinney 2014). Because an Article 78 claim is based on state law, the federal Court is only empowered to entertain this claim through an exercise of its supplemental jurisdiction. 28 U.S.C. § 1367. However, because the Court believes that the important issues posed by this case should be first addressed by the New York state courts, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ Article 78 claim pursuant to 28 U.S.C. § 1367(c)(4). Accordingly, Defendants’ motion to dismiss the Complaint was granted as to Plaintiffs’ Sixth Cause of Action, and the action was stayed pending determination of the Article 78 proceeding in New York state court

East End Eruv Association, Inc v Town of Southampton, 2014 WL 4826226 (EDNY 9/24/2014)

The Order can be accessed at:–13-cv-04810/East_End_Eruv_Association_Inc._et_al_v._The_Town_of_Southampton_et_al

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