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Fed. Dist. Court in NY Denies Preliminary Injunction to Construct an Eruv Finding No First Amendment nor RLUIPA Violations

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Fed. Dist. Court in NY Denies Preliminary Injunction to Construct an Eruv Finding No First Amendment nor RLUIPA Violations

by Patricia Salkin

Plaintiff East End Eruv Association (“EEEA”) and individual plaintiffs sought to construct an eruv to aid practicing Jews in traveling on the Sabbath without carrying or pushing objects which is prohibited by Jewish law.  The plan involved the attachment of lechis, or wooden or plastic strips, to telephone or utility poles.  The EEEA formulated a plan for the eruv which was planned to go through three municipalities: Southampton, Westhampton Beach, and Quogue.  

EEEA entered into an agreement with Verizon by which Verizon allowed the plaintiffs to attach the lechis to utility poles in all the districts.  The town of Southampton has a sign ordinance which requires a permit for any sign in the village and prohibits signs on any telephone or utility pole.  Southampton asserts that the lechis is a sign both because it “demarks and area” and because it “sends a message” as part of the eruv.  Plaintiffs argues that Southampton does not strictly enforce its sign ordinance, and presented evidence that it allowed up to six signs to remain posted over an eight month period.  Defendant town sent Verizon a letter explaining their view that the addition of a lechis would fall under their sign ordinance and Verizon would need to obtain a permit to construct.  Neither Verizon nor the plaintiff, however, ever applied to Southampton for a permit.  

The village of Westhampton Beach determined that the lechis is not a sign under their ordinance, however, the village sent a similar letter to Verizon indicating that the village must approve the lechis.  Further, trustees of the village indicated previously that they opposed the construction of the eruv.  Finally, the village Quogue similarly argues that the plaintiff must obtain permission before attaching any lechis because the construction constitutes an encroachment.  Plaintiff argues that the lechis are not an encroachment and, thus, the village code should not apply and also that the village only selectively enforces its code.  After some perceived resistance from municipalities, plaintiffs filed a preliminary injunction seeking the court to allow the eruv. 

The court began its analysis by dealing solely with the Southampton defendants.  First, the court dealt with defendant’s contention that the claim is not ripe.  The court found that since neither Verizon nor the plaintiff had applied for a permit or variance, and subsequently have not appealed any decision, the claim is not ripe for the district court.  Although plaintiffs argued the claim is ripe because any attempt would have been futile, the plaintiffs failed to prove that the town was legally opposed to the eruv such that any application would be futile. 

Next the Court considered whether to grant the preliminary injunction, i.e. whether the plaintiffs have shown a likelihood of success on the merits.  First, the court considered the Free Exercise of Religion claim.  Since the sign ordinance in Southampton is neutral, to receive strict scrutiny, the court explained, the plaintiff must show that the town selectively enforced its sign ordinance.  The court found that plaintiff’s allegations of selective enforcement were unfounded and although there were some signs around the town, plaintiff showed no relation to religious purposes.  Thus, plaintiff had a low likelihood of success on the merits.  Next, the court looked at the preliminary injunction under the RLUPIA claims.  Here, the court found that the plaintiffs had no property interest in any land, and thus, the rule was inapplicable.  Although plaintiff had an agreement with Verizon, this sublicense, finds the court, does not grant a property interest in the land.  Thus, again, plaintiff’s likelihood of success on the merits was low.  Finally, the court examined plaintiff’s tortuous interference claims.  Since plaintiff had not shown any breach of the contract between EEEA and Verizon, again, the court finds plaintiff has a low likelihood of success on the merits.  Thus, the court dismissed the application for a preliminary injunction in Southampton.  

Finally, the court turned to the Quogue and Westhampton defendants.  The court explained that since the proposal had the eruv traveling through all three municipalities, the relief sought by the plaintiff depended on the outcome of the Southampton decision.  The refusal to allow the eruv in any one municipality effectively disallowed construction.  Thus, since the court had not granted the preliminary injunction in Southampton, they court dismisses plaintiff’s claims against Quogue and Westhampton without prejudice.  The court did indicate, however, that before re-filing with court, plaintiff should propose their eruv plan to each village.  

East End Eruv Ass’n, Inc. v. Village of Westhampton Beach, 2011 WL 6156802 (E.D.N.Y. 11/3/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+6156802&sv=Split

Patricia Salkin | January 22, 2012 at 1:26 am | Categories: Current Caselaw - New York, Religious Uses - Non-RLUIPA, RLUIPA, Signs | URL: http://wp.me/p64kE-1z4

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