Posted by: Patricia Salkin | July 30, 2015

NY Lower Court Rules Eruv is Not a Sign…Federal Case Continues

Editor’s Note – This post appears on the RLUIPA Defense Blog here –

For the past 5-plus years, East End Eruv Association (“EEEA”) has been involved in federal litigation seeking approval to construct an eruv in accordance with its religious beliefs (East End Eruv Association v. Westhampton Village, Village of Quogue, Town of Southampton, et al.) (referenced here as the “main case”). According to EEEA, an eruv is “a largely invisible unbroken demarcation of an area.” Within an eruv, Jewish residents may push or carry objects in the public domain on Sabbath and Yom Kippur, which they would be unable to do without an eruv. EEEA wants to construct the eruv on existing utility poles and attach lechis, wooden strips no larger than 1”x4”x40,” which would form the boundary of the eruv through three towns within the Hamptons.

In 2013, EEEA filed a similar suit against the Town of Southampton to construct an eruv (the “Southampton case”), after the court in the main case ordered EEEA to engage in the administrative approval process in Southampton in order to exhaust its administrative remedies. In the Southampton case, EEEA claims that instead of facilitating approval of the eruv, “the Town’s representatives initiated a cycle of delay and misinformation that prevented EEEA from obtaining a final decision from the ZBA for more than a year and a half.”

Each case has a long and complicated procedural history, but in short, EEEA claims that it does not need local approval to construct the eruv because it entered private license agreements with owners of the utility poles necessary to erect the lechis. EEEA also claims that the defendants interfered with the agreements by informing the pole owners that municipal approval was required prior to construction. The main case complaint alleges that such action violates the First Amendment, RLUIPA, § 1983, and § 1984, and has caused a tortious interference with EEEA’s license agreements.

After EEEA sought approval in Southampton, it filed a state-court appeal of Southampton’s determination that the lechis were subject to Southampton’s Sign Ordinance. EEEA also challenged the municipality’s denial of a use variance to erect the lechis. The state court found in favor of EEEA, ruling that application of the Sign Ordinance was arbitrary. EEEA reported the decision in a letter to Judge Tomlinson in the Southampton case, and requested that the court lift the current stay in that federal action. EEEA summarized the state court decision as:

Judge Farnetti held that Southampton’s Chief Building Inspector’s interpretation that lechis are signs “is contrary to the language of the law, irrational and unreasonable in that it does not comport with the Sign Ordinance’s intent.” He further found that:

[T]he boundaries are invisible as the lechis are not discernable. Therefore, unpersuasive is any argument that the lechis are on poles in the public right-of way. Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.

Assuming, arguendo, that the Sign Ordinance applied, the state court also concluded that it was erroneous for the ZBA to deny EEEA’s request for a variance. Although the court recognized that religious uses are not exempt from zoning, it also noted that a municipality is obligated to “make every effort to accommodate” a religious use. Since the ZBA failed to make any effort to accommodate or even to suggest accommodations to EEEA, its denial was deemed an abuse of discretion.

In its letter, EEEA also argues that the state court decision “should also be considered in connection with the parties’ pending submissions on whether the Quogue Village Code applies to lechis,” in the main case. According to EEEA, the decision “compels the conclusion that the lechis do not constitute ‘devices’ or ‘encroachments’ in a public right of way under a rational and reasonable interpretation of the Quogue Village Code.”

East End Eruv Association v Town of Southampton, (Suffolk Co. Sup. Ct. 7/9/2015)

The opinion can be accessed at:

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