Robert Hermansen: Fool them once, shame on you. Fool them twice?

In July, Robert Hermansen made up rules that didn’t actually exist in an ordinance.  Today, he’s making up provisions that don’t exist in the settlement agreement.

There’s a meeting on Tuesday — it’s time for him to be honest with residents.

On January 31st, the Mahwah Council voted to settle the lawsuit over whether an eruv can stay in the Township.  The eruv stays.

The terms of the settlement agreement are public and they can be read here: Settlement Agreement between BREA and Mahwah.
(If you’d like a break-down of the major highlights, you can see that here: MAHWAH SETTLES ERUV DISPUTE (eruv stays))

Legal agreements and contracts have terms and the terms are made by lawyers to avoid issues of ambiguity.  But that doesn’t stop politicians from trying to obfuscate and confuse the people they represent.

Enter, Mahwah Council President Robert Hermansen on facebook:

In his post, Mr. Hermansen seems to claim that relocation of the eruv is part of the agreement signed by the Township:

Where does the agreement say that?

Let’s be clear about what the agreement does and doesn’t do.

  1. It lays out all the terms:

    This Agreement sets forth the terms and conditions under which the Parties mutually agree to resolve any and all claims as between them set forth in the Complaint, including all claims against each Parties’ officials, agents, representatives, and employees. For the avoidance of doubt, this Agreement shall also resolve all claims or potential claims as between the Parties related to acts or omissions by the Parties (including through their officials, agents, representatives, and employees) with respect to the lechis and/or Eruv that occurred up until and through the date of execution of this Agreement, including any and all claims for reimbursement of costs for Litigation expenses, attorneys’ fees and Litigation costs up to and through the date of this Agreement (which might have required payment by Defendant to Plaintiffs of approximately $311,000.00). (paragraph 2(a)) (emphasis added)

  2. It speaks to payment from Mahwah: The $10,000 payment (or additional amount negotiated in the next 20 days) relates to legal fees and costs only.

    [T]he Township shall pay to Plaintiffs’ attorneys, within twenty (20) days of the execution of this Agreement, the sum of $10,000.00, or an amount mutually agreed upon, representing compensation for a portion of Plaintiffs’ legal fees and costs incurred in the Litigation. Such additional amount, if any, shall be agreed upon by the Parties within the 20-day period. If no agreement is reached by the Parties within the 20-day period for any additional amount, the $10,000.00 shall constitute the full and final compensation for legal fees and costs. (paragraph 2(a)) (emphasis added)

  3. It lays out what the parties understand the agreement to mean.

    UNDERSTANDING OF THE PARTIES. In full and final satisfaction and accord of the Settled Claims above, and in consideration for the Release as more fully set forth in Paragraph 4, below, the Parties agree as follows:
    – “Subject to Paragraph 3(c) below, the Township consents to the existence, restoration, maintenance, repair and upkeep of the lechis comprising the Eruv.”
    (paragraph 3(a))
    – “nothing in this Agreement shall preclude Plaintiffs, their agents, successors and/or assigns from future expansion(s) and/or modification of the Eruv within and/or outside of the Township1
    (paragraph 3(a))
    – “The Township of Mahwah will take no action impairing Plaintiffs’ ability to restore, repair, keep or otherwise maintain the Eruv” (paragraph 3(b))
    – “At the Township’s request, BREA agrees at its sole cost, within twelve (12) months from the date hereof, to recolor and/or replace each existing lechi to match the applicable utility pole as closely as practicable1…. With respect to any work done to color and/or replace existing or future lechis, the Township shall provide a police escort for the duration of such work at BREA’s cost.”
    (paragraph 3(c))

  4. The agreement really does lay out all the terms.

    “This Agreement sets forth the complete understanding and entire Agreement between the Parties and supersedes any and all prior agreements or understandings between the Parties.”
    (paragraph (8))

So I wondered what Mr. Hermansen means when he says that “the agreement permits us to have a dialogue for the relocation of the ERUV subject to the agreement of the parties.”

Where does it say that?  The word “relocation” doesn’t appear in the document.  Did he make it up?

Then I saw this comment by newly appointed Mahwah Council-representative Michelle Crowe Paz:

In response to a question from a resident, council-woman Paz says that the $10,000 from Mahwah to BREA is for “painting/relocating”:

That’s not in the agreement either.  The agreement lays out the reasons for the payment: “compensation for a portion of Plaintiffs’ legal fees and costs incurred in the Litigation.”

Painting the poles is not a cost that was “incurred in the litigation”, therefore it doesn’t qualify.

$10,000 goes to the lawyers at Weil (parag. 2(a)).  BREA pays for painting the poles (parag. 3(c))

The settlement makes clear that the painting of the poles, if requested, is done solely at the expense of the BREA (see paragraph 3(c)).

Had this been a random comment mistakenly uttered on the internet by people that aren’t lawyers, I might have let it go.  But I wrote to Ms. Paz privately before she put in the last two comments and at the very least, she should have asked the multitude of legal talent the Township has hired before making people think the money is for something it’s not.  I also wrote to Mr. Hermansen and he directed me to call the attorneys.

But let’s focus on Mr. Hermansen for a moment.  This episode is eerily similar to what happened with the parks ordinance.  As you may recall, ordinance 1806 was very simple.  It took the words “non-residents” out of the code, limiting park usage to NJ residents only.  That was it, as far as the ‘letter of the law’ was concerned.

Mr. Hermansen replied that an exception would be made outside of what was written in the law. I wrote about this here, in August.


The chief of police called out the issue in a letter2 and the Attorney General of the State used that email in his complaint against Mahwah citing:

A Mahwah resident who is not of the Orthodox Jewish faith sent an email to Council President Hermansen expressing concern that her mother who lives in New York would not be able to take her grandchildren to the Mahwah parks. The Council President replied to this resident she had nothing to worry about and that Ordinance 1806 was not intended to cover her situation.  (see paragraph 31)

And now Mr. Hermansen is at it again.  There is NO LANGUAGE that is IN THE AGREEMENT that speaks about a dialogue to move the eruv.  It may be a conversation worth having, it might lead nowhere.  I don’t have a dog in that fight and I would welcome anything that reflects a mutual agreement between the parties here.

But the idea that Mr. Hermansen feels so free to casually disregard what laws and agreements actually say, when it suits him, makes him a very poor choice for representing the best interests of anyone.  Beware Mahwah residents, you have been warned.

  1. Some conditions apply, see agreement for full list of requirements.
  2. Citing the change by Council President Hermansen, Chief Batelli wrote in this letter to the Town’s business administrator, Mr. Wiest:

“The proposed signage contains verbiage which is different from the Ordinance. The ordinance reads parks and playgrounds are open to New Jersey residents and does not list any exceptions.  The signage includes exceptions that “guest of a resident are permitted” and “employees of local businesses are permitted”




UPDATE: On Feb. 15th, Judge Vazquez entered a retention order and closed the case.  Normally, after a case is over, a new action may be necessary to enforce the terms of the agreement.  This order lets the court retain jurisdiction so that if there is a need to enforce the settlement, a letter can be filed asking the case to be re-opened.

In settlement papers filed with the court today, Mahwah has given up on their six month campaign aimed at “keeping the poles clean” and upholding their “way of life”.

In a vote of 5-2, the Mahwah Council agreed to settle claims brought by the Bergen Rockland Eruv Association against the Township for threatening to issue summonses over an eruv erected in a section of the municipality.

Pursuant to the agreement, the Township will put $10,000 in an account to cover some legal costs*.

The Eruv Association will change the color of the pvc piping in the poles (called lechis) over the next 12 months.

The parties will also have 20 days to agree to a sum above and beyond the $10,000.  Sources tell Eruv Litigation that this was the change requested by Council President Robert Hermansen.  It is not immediately clear why an additional amount would be provided.

Each party will bear their own litigation costs which may have been at least $311,000 as of today pursuant to the agreement Mahwah signed.

Pursuant to the agreement:

  • Plaintiffs agree not to file any further charges with any local, state or federal agency against the Township and/or any of its employees, agents or administrators arising from dealings that have occurred up to and through the date of execution by all Parties to this Agreement.
  • The Township consents to the existence, restoration, maintenance, repair and upkeep of the lechis comprising the Eruv.
  • Nothing in the agreement prohibits the eruv from a future expansion and / or modification within and / or outside the Township (the plaintiffs will however confer with the town if any expansion is planned).
  • The Township of Mahwah won’t stop the Plaintiffs from restoring, repairing, keeping or maintaining the eruv.  Nor will they seek to enforce or adopt any ordinance or resolution prohibiting or impeding future lechis on poles.
  • Mahwah can request for the BREA to change the color and / or replace the lechis to better match the poles, within the next 12 months (unless the utility says they can only be a certain color).
  • No public funds will go towards the Eruv.
  • If the Township violates the agreement, the plaintiffs may seek an expedited and immediate injunctive relief through an order from the court.
  • Plaintiffs will not initiate any new litigation against Mahwah for at least 2 years as long as they abide by the agreement.
  • Neither party shall be considered a “prevailing party” and there is no admission of liability.



* please note that a previous version of this post mistakenly indicated the purpose for the $10,000. The agreement says: “the $10,000.00 shall constitute the full and final compensation for legal fees and costs.”

Mahwah: Vote Today On Settlement With BREA (Eruv Association)

After several hours in closed session last night, the Mahwah council has continued the meeting to this evening at 6pm.

It has been confirmed that the Mahwah Council has prepared Ordinance 088-18:
“Resolution Authorizing Settlement Agreement and Release – Bergen Eruv Association Inc. vs. Township of Mahwah”

Eruv Litigation reached out to Plaintiffs and Council.  We will have more information shortly.

Sp. Emer. Council Mtg 1.30.18

Mahwah Council Still Doesn’t Get It: Diligence Necessary [by Lisa Wisotsky and Yossi Mandelbaum]

By: Lisa Wisotsky and Yossi Mandelbaum

Announcing the nine count State Lawsuit against the township of Mahwah, then Attorney General Porrino said, “Our message to those public officials in Mahwah who are leading or following this misguided charge is meant to be loud and clear: We intend to hold you accountable.”  However, as of this writing, the township council has shown that it remains unwilling to recognize their pivotal role in inflaming the hateful environment which led to discriminatory ordinances.

Although the Parks Ordinance was rescinded and the Sign (Eruv) Ordinance tabled, the hateful environment continues in Mahwah. Council President Hermansen and Councilman David May continue to participate in online forums and refuse to call out blatantly anti semitic language from their constituents. Mr. May even mockingly presented the concept of a full Bergen County eruv to the county freeholders.  The display of contempt is unmistakable.

This stance was made clear by the Mahwah Township attorney, Brian Chewcaskie at the 12/14/17 meeting (see video).  

He described the ordinance undoing the Parks Ban and the Resolution (424-17) to table the Sign Ordinance as just a “strategic move” and does not address the offensive behavior or environment that led to the State of N.J. initiating a lawsuit and condemning the civil rights violations in Mahwah.

In January , the Township Council, in a move which can only be described as pure “chutzpah,” re-installed Robert Hermansen as Council President. Upon being sworn in, he immediately began to lash out at the “outsiders” instead of taking responsibility for the current legal predicament.  This is precisely the same defiant attitude Mr. Hermansen struck immediately following the news of the Bergen County prosecutor (and the now current New Jersey Attorney General) instructing  the Chief of Police in Mahwah not to enforce the unconstitutional Park ordinance.  Specifically, he declared to a concerned “outsider,” “I promise you, there will be a Parks Ordinance and there will be one that is going to be enforceable in this town whether you like it or not.”

The audacity of the Council continues with the current effort to recall Mayor LaForet. The Mayor changed his original position opposing the eruv and now urges the Council to alter their course as well. Mr. Hermansen, consistent with his inability to offer contrition, is supporting the recall effort. Mr. Hermansen adds the thinnest veneer of professionalism stating in a recent interview that as council president he can’t  take a stance on the recall, however as a private citizen he fully supports it.  This is of course nonsense.  Not only is Mr. Hermansen actively supporting this effort, he has used the his position on the town council to symbolically censure the Mayor and even stated at a council meeting “If I had my way his [Mayor Laforet] ass would be on the other side of this dais, and not even in this room and sitting at this Meeting.”

Finally, when Keith Kaplan, at the January 9, 2018 Council meeting ( see video) asks Council President Robert Hermansen if the Council will renew the resolution in 2018 stating that the Council will not reenact Ordinance 1812 (Sign Ordinance), Robert Hermansen becomes argumentative and refuses to answer.

The Parks and Sign Ordinances were enacted in a hateful environment that was permitted and at times encouraged by the council. Rescinding the ordinances, without accepting responsibility and offering contrition, is unacceptable. This leaves open the possibility that similar ordinances may be enacted in the future when attention is shifted away from Mahwah.

Mahwah, NJ: Bigotry Without Contrition

Mahwah: A “Special Meeting” has been scheduled for January 25th at 10am.  The purpose of the meeting is to go into Closed Session to discuss: Litigation.
As the next scheduled Mahwah Town Council meeting is 2/8, it would appear this special meeting is the Council’s last chance to settle claims against them before the Court imposed deadline.

On January 12th, the Townships’ Counsel, Cleary Giacobbe sent a letter to Court indicating they needed an extension of the time to answer the complaint because “the parties are in the process of engaging in settlement discussions that would resolve this entire matter”.

The Court extended Mahwah’s time to answer the complaint until January 31st (the Judge indicated that it was being extended “for the last time”).

As the legal actions begin to wind down, in favor of the Eruv Association, the Township Council remains, as defiant as ever.

The Bigotry Started With Complaints

Earlier this spring, some residents noticed Hasidic Jews hanging out in local Mahwah Township parks.  Almost immediately, cries were heard about “overcrowding” and “other people”.

Local Leaders Responded to the Bigoted Mob

Local political leaders were swift to act.  Ordinance 1806 came first.  The letter of the law banned non-NJ residents from enjoying the amenities in local parks.  But it was in the application, where the truly pernicious nature became readily apparent.  The restrictions only applied to certain non-residents.

As I wrote back in August:

You can’t only apply laws to certain people (e.g. Jews from Rockland County), and not an out of state Grandma with her Mahwah resident grand-kids.  That would be unequal treatment under the law for which the cops could be liable to scrutiny and legal action for selective enforcement.  From a municipal perspective, the last thing anyone should want is another easily winnable lawsuit because of a poorly drafted ordinance.

But as you can see below, this is exactly the kind of situation the council created when they enlisted the lawyers to draft Ordinance 1806.

To be blunt: Mahwah’s Mayor, Council President and the rest of the Council designed and enacted an ordinance that prohibited Jews from crossing the adjacent NY border to use the parks in their town.  They exempted the non-residents they liked and declared the rest, verboten.

Township Administrator Identified Problems With Enforcement

Prior to ordinance 1806 going into effect, there was ample evidence that it was problematic.  The township’s business administrator, Quentin Wiest, had inquired and was explicitly told as much from Jerry Giaimis, the administrator of Saddle River.  Mr. Giaimis even referenced the NJ Court opinion it would violate.  Yet, thinking they would be able to get away with it, Ordinance 1806 went into effect… almost.

Chief of Police Identified Problems With Enforcement

A few days before it was set to take effect, the Chief of Police, James Batelli, wrote a letter to the governing body, following up on his previous email, outlining concerns he had about enforcement of the parks ban.  He stated that he would not be able to enforce the ordinance.  Sending men with guns to ask Jews for their papers wasn’t going to happen in Mahwah under Chief Batelli’s watch, no matter what the Council had to say about it.  The police must abide by the Law Against Discrimination and must uphold the protections of the State and Federal Constitutions.

In his July 24th letter, Chief Batteli stated in part:

“I have expressed my concerns to the Township governing body and the Township Attorney about the enforcement of this Ordinance and how the actions of Officers trying to enforce the Ordinance may violate bias based profiling guidelines (see attached correspondence)…”

“The Ordinance does not provide any neutral criteria for Officers to use as a basis for their actions…”

“The Ordinance essentially leaves our officers little other choice other than to ask for identification for no reason or for impermissible reasons and opens the door for civil based litigation and/or Internal Affairs complaints”.

“It has also been observed the elected officials have been commenting on social media about both the ERUV installation and the park and playground restrictive Ordinance in the same post which could bring into question the motivation and agenda behind the Ordinance which our Officers are expected and tasked to enforce… an argument or foundation could be made that any attempt to enforce this Ordinance is discriminatory and based to target a protected class.”

“Our agency trains and instructs our Officers on a routine and regular basis on what constitutes bias based profiling and that we explicitly prohibit and will not condone or tolerate illegal profiling by any of our members.  This Ordinance that we will be asked to enforce in four days seems to fly in the face of what we instruct our Officers as there is no discernible means of ascertaining the residency of a park user.”

Mahwah Council Attacked The Police Chief

The reaction from Mahwah was as swift as it was pointed —  Mahwah’s Council President stated he wanted to look into disciplinary charges in an explosive 1am email and Ordinance 1811 was introduced, which would create the position of “Police Director”. This new ordinance would replace the top law enforcement official (the Chief of Police) making him subordinate to a civilian police director, appointed by the council.

The unmistakable message: Listen Chief, if you won’t act the way we want, we have ways of making your life miserable.1

Bergen County Prosecutor Confirmed Problems With Enforcement

In response to threats from Robert Hermansen and the Council, the Chief of Police sought advice from the Bergen County Prosecutor, Gurbir Grewal (Mr. Grewal is now the NJ Attorney General, appointed by Gov. Murphy).  Mr. Grewal came to the same conclusion as Chief Batelli.

In a letter sent to Mahwah’s Council dated July 27th, Mr Grewal stated in part:

“I concur with your observations concerning the Ordinance [that enforcement may violate the constitutional rights of individuals using Mahwah parks]  and agree that its enforcement raises serious legal issues… the Ordinance raises numerous constitution concerns… it provides no neutral criteria for MPD officers to utilize when deciding to detain an individual… it’s enforcement would violate the Fourth Amendment‘s proscription against unlawful searches and seizures.  Indeed, in Barkawi v. Borough of Haledon, the Appellate Division affirmed the trial court’s invalidation of a similar ordinance excluding non-residents.” [ed note: Haledon was the same action, cited by the administrator of Saddle River in response to Mahwah’s inquiry about similar rules in other municipalities].

“Second, enforcement of the Ordinance may violate the Directive prohibiting racially-influenced policing.”

Mahwah Council Continued Attack On Civil Rights With Additional Restrictive Ordinances

The reaction from Mahwah was, again, as swift as it was pointed.  The Council continued to create bigoted ordinances.  Ordinance 1812 aimed at creating an identical ordinance that neighboring USR was using to prevent Hasidic Jews from putting up an eruv in the Township.

Then came the “No-Knock Ordinance” amid unfounded cries from the mob that Jews were lugging around suitcases of cash, ready to “block-bust” their way into the neighborhood.

Then came the do’s and don’ts for activities in parks, banning activities as benign as playing ball or leaning a bicycle against a tree.

The Bergen Record’s Alfred Doblin described the situation:

“Mahwah residents and their elected governing body are creating a body of evidence that shows the fight against the eruv is not about zoning, but about Orthodox Jews. That a no-knock ordinance is not about door-to-door solicitations, but about Orthodox Jews. That a proposed ordinance that would ban nearly 40 new activities in the town’s 10 parks, including the egregious tree climbing, is about Orthodox Jews.”

When Mayor Laforet stood up against the ordinances (which it was later revealed that the Township attorney advised not to pass), Mr. Hermansen and the Council took a vote of no confidence in him. Councilman Jonathan Wong said “[Laforet’s] statements have now created a position which can be cited to in light of litigation and subpoenas.”

The Bergen Record from Oct 6th:

“The mayor didn’t need to go on television for state officials to figure that out.”

“The fight against the eruv, the out-of-state park ban, public comments from residents about “these people” — and worse — show that at least a vocal minority of residents and the council don’t want Orthodox Jews in their town. The reasons don’t matter. Religious discrimination is never justifiable.”

The council may have claimed the no-confidence vote had to do with an interview Laforet gave, but the pattern was crystal clear.

The unmistakable message: Listen Mayor, if you won’t act the way we want, we have ways of making your life miserable.  All the while, rhetoric in the council chambers remained antagonistic to Jews.  Jewish speakers calling out against the ordinances would be shouted down by the Mr. Hermansen and were not permitted to finish a thought without interjection.

State Of New Jersey Confirmed Enforcement and Constitutional Problems: Lawsuit Filed Against Mahwah And Council

Having seen enough, the Republican Appointed Attorney General, Christopher Porrino filed a Civil Rights Lawsuit against the Township as well as against the Council Members themselves.  The suit cited the enactment of Ordinances he described in a statement as:

“influenced largely by vocal anti-Orthodox-Jewish sentiment expressed by some residents at public meetings and on social media, engaged in unlawful discrimination aimed at halting an unwanted “infiltration” by Orthodox Jews – particularly from neighboring Rockland County, NY.”

“In addition to being on the wrong side of history, the conduct of Mahwah’s township council is legally wrong, and we intend to hold them accountable for it,” said Attorney General Porrino. “To think that there are local governments here in New Jersey, in 2017, making laws on the basis of some archaic, fear-driven and discriminatory mindset, is deeply disappointing and shocking to many, but it is exactly what we are alleging in this case. Of course, in this case we allege the target of the small-minded bias is not African-Americans, but Orthodox Jews. Nonetheless, the hateful message is the same.”

“This is an extensive complaint … but the bottom line is very simple — the township council in Mahwah heard the angry, fear-driven voices of bigotry and acted to appease those voices”.

Mahwah Continued to Attack Mayor Laforet And Anyone Standing Up For Constitutional Rights

Facing two civil rights actions for discrimination, Mahwah continued to demand efforts to protect Mahwah’s way of life.  Robert Hermansen himself referred to groups he tried to exclude as “outside forces… trying to change our current way of life.”

Mahwah Officials Back A Recall

Mahwah is reacting as it has in the past. A recall effort against the Mayor has been launched.  Punishment and threats are what the mob demands of those that stand up to them, in the name of justice and equality.

Since June, when Chief Batelli advised the Township that efforts to restrict parks and create ordinances banning an eruv are unenforceable at best — and unconstitutional at worst, Mr. Laforet has been the only elected member of Mahwah’s government to switch gears, coming out to do the right thing.

And doing the right thing in Mahwah gets you punished.

It got the Police Chief a threat from the Council President in the form of a request for departmental charges and an Ordinance subordinating him to a Police Director.  It got the Mayor a rebuke from the Council in the form a vote of no confidence.  And now, after efforts in the Courtroom have proved unsatisfactory to the hate-filled mob, residents are trying to recall the Mayor from office as the Council is cheering them on from the bully pulpit.

The stated reasons for the Recall include: blatantly lying to the public about his knowledge of planned expansion of non-resident partisan political groups into Mahwah.

They may have just as well said: Jews.

If you didn’t know better, “non-resident partisan political groups” may sound nicer than “Jews“, but in Mahwah, we do know better.  We have seen this play out over months, in their Town Council chambers, by elected representatives, who remain without an iota of contrition or remorse regarding their actions.

The Mahwah Town Council currently has two civil rights suits to deal with.  They have shown absolutely no indication that they understand or care that they have acted inappropriately.

Before any settlement is reached, the respective plaintiffs on the other side of the table, should ensure Mahwah acknowledges the harm they have engendered.  It is necessary because the acrimony continues to reverberate throughout the wider community of Bergen County.

Whether the Council felt it was protecting its residents or way of life is immaterial.  Extremism is still extremism when your heart’s in the right place.

  1. After attacking the Police Chief, the Council decided to honor Chief Batelli for his 39 years of service with a resolution on December 1st.  He didn’t show up to the meeting.  On December 28th, the Council indicated that Judge Carver has been retained to investigate a hostile workplace claim against the township.  Assuming this claim was by the Chief of Police, this issue is far from over.

[Transcript] Federal Judge: 6 Reasons Why USR, Mahwah and Montvale Should Be Trying To Settle Their Eruv Litigation As Fast As Possible

United States District Judge John Michael Vazquez gave his preliminary thoughts about various issues involved in Friedman, et al., v. Borough of Upper Saddle River, at a hearing held on January 9th.  You can read our previous write-up here.

Below is a synopsis of stances the parties have taken, with links to relevant sections of their briefs (where they make their respective arguments).  What follows as “thoughts from Judge Vazquez” has been pulled from the the transcript of last week’s hearing.

6 reasons why efforts to remove the eruv in Upper Saddle River, Mahwah and Montvale seem unlikely to succeed:

1. Enforcement: Consistent or Selective?

USR’s position: USR Borough Ordinance 16-15  is Generally Applicable and Has Been Generally Applied (page 61 of Motion to Dismiss)

Eruv Association’s position: USR’s Selective Enforcement of the Ordinance Violates the First Amendment’s Free Exercise Clause (page 24 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez: “The town has said they’ve had a history of enforcement of the ordinance. They essentially say it’s always enforced. They have specific training for the police officers; they have officers on patrol.

However, there were several violations of the ordinance which somehow the town was not aware of until the plaintiff pointed it out in their filings. Some of them were lost pet signs, which the Court understands can only be up for a relatively short period of time. But others were permanent fixtures, such as mailbox [sic]. And if the town did do proper training and they had police officers on patrol, the Court has concerns over the town’s claim that they were always enforcing this ordinance before the plaintiffs brought these violations to the town’s attention.” (page 14 of hearing transcript)

“Subsequently Preusch learned from counsel that they needed approval of the governing body. This also causes concern to the Court, with the town’s claims that everyone knew about the ordinance and was enforcing it, because it doesn’t appear that anybody who was charged with enforcing the ordinance knew about it.” (page 16 of hearing transcript)

“The town says while the Chief did not authorize or condone them putting up the eruv, but they had just been told three days prior that they were allowed to go forward and go see the Police Chief, and indeed the Police Chief was the one in charge of enforcing the code. So at a minimum, it seems like the Police Chief wasn’t aware of the code or the ordinance that the town now says is being enforced universally by the town at that point. And in fact, it doesn’t seem that any of the town officials, who plaintiffs spoke with, were aware of the ordinance.

So again, that cuts against the claim that they’ve always, that the town has always enforced the ordinance. Because it doesn’t even seem as though the critical people were aware of the ordinance, or that this would be a violation of the ordinance. After the plaintiffs did the contractor road construction form on June 20, 2017, it was voided. Not immediately, but approximately one month later.  Again, to the extent the ordinance was always being enforced, it certainly cuts against that argument. Because it seems as though it took somebody about a month to realize that they were going to stop the construction pursuant to the ordinance.” (pages 16-17 of hearing transcript)

2. Validity of License Agreements:

USR’s position: Plaintiffs’ Do Not Have a “Valid” License (page 67 of Motion to Dismiss)

Eruv Association’s position: USR’s Technical Challenges to Plaintiffs’ Licenses Are Misplaced (page 15 of Plaintiffs Opposition to Motion to Dismiss)

Thoughts from Judge Vazquez:  “Preliminary thinking is that when I looked at the joint use agreement submitted by the defendants, they focus on language that does not appear to be applicable to this case. The joint use agreement between Verizon and O & R discusses permission, reference other parties using supply circuits to attach supply wires and cables. The eruv and the lackies in this case do not appear to fit within those definitions.” (page 4 of hearing transcript)

3. Constitutionality / Ambiguity of USR’s Ordinance

USR’s position: Ordinance 16-15 is not Unconstitutionally Vague (page 64 of Motion to Dismiss)

Eruv Association’s position: The Ordinance is Constitutionally Vague (page 46 of Opposition to Motion to dismiss)

Thoughts from Judge Vazquez: “As to the issue as to whether the ordinance is unconstitutionally vague, certainly the term “matter” is a broad term and gives the Court concern. I don’t — it seems as though the town is not removing all matter from the utility poles. At least based on the pictures. They may  have removed more sizeable matter, which is a somewhat ambiguous term. But there’s other things, including plaque  strips and nails and staples and tacks, and it really raises  the question of, is the town enforcing that as to all matter, as the ordinance provides, or just some matter.” (page 9 of the hearing transcript)

4. Applicability of State Statute NJSA 48:3-19

USR’s position: Municipal Consent Is Required (pages 68 – 74 of Motion to Dismiss)

Eruv Association’s position: N.J.S.A § 48:3-18 – Which USR Ignores – Expressly Does Not Require Municipal Consent (page 21 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez:  As to N.J.S.A. 48:3-19, concerning the consent of the municipality, which shall be obtained for the use by person of poles of another person, unless each person has a lawful right to maintain poles in such street, highways or public places relied upon by the town, I could not find one case to interpret that statute. Not one. And it’s been on the books, I think it was last modified in the 1960’s. I didn’t see it mentioned in Tenafly. And that would require a lot more work on behalf of the Court before I determine whether that applies or not. And, truthfully, as the parties rely upon it, defendants did not submit sufficient information to show that it applies. (page 10 of the hearing transcript)

5. Does The Discriminatory Intent Of The Council Matter?

USR’s position: Discriminatory Intent is Legally Irrelevant and Not Present Here (page 53 of Motion to Dismiss)

Eruv Association’s position: USR Is Wrong That “Discriminatory Intent Is Legally Irrelevant”. (page 40 of Opposition to Motion to Dismiss)

Thoughts from Judge Vazquez: “[Defendants] also say, at best, it’s an open question at the Supreme Court level. But to the extent it’s an open question at the Supreme Court level, I look to the circuit, and Tenafly clearly says I should consider whether there’s discriminatory intent in reading the law.

I looked to the town ordinance history. I will give you what my concerns are. Because I think the plaintiffs have raised real concerns about a discriminatory intent in invoking this law, and that the effect was to only harm the plaintiffs.” (page 11 of the hearing transcript)

6. What was the purpose of Ordinance 16-15?

USR’s position: The primary impetus of the ordinance was the proliferation of political signage (pages 15-17 of Motion to Dismiss)

Eruv Association’s position: The evidence shows that USR’s Borough Council passed the Ordinance with the specific, discriminatory intent of targeting the eruv. (page 21 of Motion for Preliminary Injunction)

Thoughts from Judge Vazquez: “Importantly, as I noted, they already had ordinances to address the political signage, which they said is the stated reason for the new ordinance. That doesn’t make any sense to me.  If you already have one that — if the problem is signs and you already have an ordinance for signs, it doesn’t make sense to me you have to amend it for other things other than signs. And they added the word “device.” Which I didn’t see any issue from the town that they were having problems with devices before, but now that seems to be one of the main issues for the town, is that the eruv constitutes a device under this ordinance…. And it’s not lost on the Court that to the extent that O & R complained in 2015 about political signs, it’s the same group that granted the license to the plaintiff eruv in this case. So to the extent they were complaining about political signs, the facts seem to show they were in agreement with the eruv.” (pages 13-14 of the hearing transcript)

Why this is applicable to other Towns:

The reason that the Township of Tenafly lost their case, a decade ago, was because the court found, in part, they inconsistently enforced their ordinance against some, but not all items, placed on utility poles.

In the Upper Saddle River action, Judge Vazquez seems to make the argument, that the very fact that the Township administration approved and the police monitored, the installation of the lechis, it is evident that they a) hadn’t considered the lechis a violation of the ordinance or b) didn’t consistently enforce the ordinance.

This is a situation that has been seen in Mahwah and Montvale as well.

In the Mahwah eruv litigation, the Mayor issued a statement that “[a]dvice by our attorneys is that we cannot do anything about the installation of these plastic pipes on these utility poles establishing a ERUV” and “BPU and O&R are obligated to allow these ERUV markings, But they have NO OBLIGATION to notify the municipality” (emphasis in original).  The plaintiffs also paid for Township police to be present at the installation of the lechis on multiple occasions (see invoices here).

Both the administration and the police department, when dealing with an application for an eruv, treated it like they would any other permitted use.  They didn’t know that the eruv was not permitted, which indicates that the ordinance cited was not being consistently enforced.

In the Montvale eruv litigation, the Borough’s Mayor issued a statement indicating that “[a]bsent any compelling safety concerns, there is little role for Montvale to play in what amounts to a private negotiation between Orange and Rockland and the community that requested the eruv”.  The plaintiffs also paid for Borough police to be present at the installation of the lechis on multiple occasions (see invoices here).

Again, if the Township’s own Mayor and Police Department treated this as an appropriate and permissible application, it’s clear they didn’t know that the eruv would be banned per the ordinance cited.  They cannot, now turn around and claim that the Borough has always and consistently enforced the ordinance.

Montvale, as reported via the Bergen Record, has been in negotiations with the eruv association regarding a settlement.
Mahwah filed for an extension to submit their response to the complaint until January 31st in contemplation of settlement.
USR has postponed their Motions to Dismiss and for a Preliminary Injunction until February 7th, in contemplation of settlement.

There is currently no update or change in the suit by the State of New Jersey against the Township of Mahwah and the Mahwah Council.

All case documents cited can be found at the respective links.

You can find all of the documents filed here:

The Transcript from the hearing of January 9th can be found below:


[VIDEO] Mahwah’s Council President has completely failed to learn any lessons from his harassment, intimidation and bullying over his last term.

On Jan 9, 2018, I appeared before the Mahwah Township Council because I strongly believe that bigotry must be confronted. I was determined to do my best, to make my message heard. Their response was to interrupt me, chastise me, deny any responsibility for their actions, and ultimately, to threaten me.

Mr. Hermansen, we will not go away!

I want to thank Freeholder Mary Amoroso and Assemblyman Gordon Johnson for their leadership in standing up to bigotry.

We call on all leaders everywhere, to join us.

“We must never remain silent in the face of bigotry. We must condemn those who seek to divide us. In all quarters and at all times, we must teach tolerance and denounce racism, anti-Semitism, and all ethnic or religious bigotry wherever they exist as unacceptable evils.

We have no place for haters in America — none, whatsoever.”
– Ronald Reagan (10/26/1984 Main Sanctuary of Temple Hillel.)

USR Hearing Write-Up: Eruv Litigation Gets Its Day In Court

Judge John Michael Vazquez held oral argument Tuesday, in Friedman et al v. The Borough of Upper Saddle River et al. The hearing was initially supposed to cover only the motion for preliminary injunction.  I wrote up the issues involved in that motion here.  The Judge did touch on the motion to dismiss as well.

Here’s how the hearing went:

The lawyers gave their names for the record.  That was the last they spoke. The rest of the hearing, which lasted approximately half an hour was spent listening to Judge Vazquez providing attorneys for the case, with his ‘preliminary views and questions he would have’, should he decide to issue any rulings at the hearing. He also indicated that he was prepared to rule.

The Judge started with a quick synopsis of the status of the case.  He showed an in-depth understanding of every argument mentioned in the briefs, a strong command of the particular issues and facts asserted in the various declarations and was clearly well prepared.

He mentioned the two motions pending before the court (to dismiss, by the defendants and for a preliminary injunction, by the plaintiffs) and referenced Mahwah and Montvale, which have similar cases also pending before him:

“The cases have also been filed against those towns, and one issue I was going to address, if necessary, is I was going to move to consolidate all three cases, they’re all assigned to me, but they all seem to have common issues of fact and law.”

What is the case about?

“Essentially, this matter focuses on the First  Amendment, which has two requirements: One, that as it applies to the states through the 14th Amendment due process clause, that the Government cannot establish a religion, but at the same time the Government cannot prohibit the free exercise of religion. And as the parties have pointed out, normally when we are addressing the free exercise, the question becomes whether a Government entity can make a reasonable accommodation for religious purposes.

In particular, the Borough ordinance which is at issue is the Upper Saddle River Ordinance 16-15, which was approved by the Borough in October of 2015. And the Borough has also raised issues concerning N.J.S.A. 48:3-19.”

After the brief overview, he came back to the theme of the morning: why don’t you settle this?

“I begin by saying I do think this case would be ripe for some type of mediation or settlement conference.

Given the issues and the facts, I do think the parties would be better served if they sat down and tried to resolve their differences. Particularly if they can do so in light of any discussions with Mahwah and Montvale.”

This suggestion was rebuffed after the meeting, by Counsel for USR, Bruce Rosen who stated: “We are not meeting with them.  We are not sitting around a table with three… if the council decides to pursue this [settlement negotiation] we will have a separate negotiating session with them”.

Mr. Rosen further stated that “there is no reason for them to be decided together”.

Back to Judge Vazquez at the hearing:

“That being said, I want to give the parties the benefit of my preliminary views on this matter. None of these views are findings of the Court, and I repeat that, they are not findings of the Court. They are my preliminary views based on reviewing all of the information available to me, and these are going to be the questions that I have.”

The entire hearing was a way for Judge Vazquez to share what he thought without technically saying it as a finding of the court.  Here’s how it unfolded:

Motion to dismiss

Validity of Licenses with Utilities

The Judge went through the issues raised regarding license agreements between the Eruv Association and the utility companies.  He cited allegations by defendants that the license agreement is invalid.  He referred to comments made in the parties’ briefing regarding the number of poles, the agreements covering each of the poles, the various ownership and related endorsements.

“Preliminary thinking is that when I looked at the joint use agreement submitted by the defendants, they focus on language that does not appear to be applicable to this case. The joint use agreement between Verizon and O & R discusses permission, reference other parties using supply circuits to attach supply wires and cables. The eruv and the lackies [sic] in this case do not appear to fit within those definitions. (emphasis added)

The eruv though, on the other hand, the plaintiffs, argue they are authorized by law to do so, and they point to the O & R license agreement that is still operative, and to the extent defendants point out that they need additional licenses, plaintiffs accuse them of being nit-picking and hypertechnical. I do not think it’s nit-picking and hypertechnical, because it was really the thrust of plaintiffs’ argument that they had the proper licenses. So I do not agree with that characterization by the plaintiffs.

That being said, plaintiffs have now presented evidence that O & R and Verizon are going to give any necessary additional licenses to complete the eruv, so it doesn’t seem like it’s going to be a real issue in this case.

The Judge did mention later that while the agreement may not currently cover all of the poles, it is sufficient to use the poles for which they currently have an agreement.

The Judge addressed safety issues, saying the parties should check with Verizon as well as O&R to make sure they have no safety qualms about the installations of the lechis or wires.  He also noted that, to the extent that defendant’s showed evidence that O&R provided correspondence about concerns over signs as a safety issue, the fact they gave a contract to the eruv association seemed to indicate that they didn’t have any issues from a safety standpoint.  Judge Vazquez stated:

“I would never require the town to do something that’s a true safety issue, but at the same time I would ask the town to check with both Verizon and O & R to make sure that they agree it is a safety issue..”


Here, Judge Vazquez addressed arguments that the case wasn’t ripe. For those not familiar with the term, “ripeness” is a legal term indicating that the case is permitted to be heard by the court, at this stage.  In the defendant’s motion to dismiss, defendants claimed that since no formal approval for the eruv was requested from USR, the eruv association was not yet permitted to file suit.  They argued that the plaintiffs would have had to file a request, get turned down and only then, could they sue in court.

Judge Vazquez wasn’t buying it, saying that going through an application process would be an effort in futility, based on the position of USR:

“But the defendants claim that they need, that the plaintiffs need municipal consent and have never asked for it. There is a question of fact there, but when I get to the later issues it certainly seems as though the plaintiffs went to the correct people, or at least people with the apparent authority to give approval, and this was an after the fact litigation tactic by the defendants to try to slowdown this case, saying that they needed to get municipal consent.

The ordinance which I referred to doesn’t refer to getting municipal consent. It seems as though the town attorney has come up with some ad hoc process to get municipal consent, which is not defined in the code. And, frankly, based on page 47 of the defendants’ brief, where they said that Upper Saddle River may not unilaterally grant immunity of the laws of Saddle River or the laws of New Jersey without violating the state and federal constitutions under due process and separation of church and state theories, it seems to me that that’s an admission by the plaintiffs — I’m sorry, the defendants, that they are never going to grant this application under that theory. So it would be completely futile. ” (emphasis added)


Standing refers to whether or not a particular party to a case can show a sufficient connection to the wrong alleged so that they can continue in the action.

Judge Vazquez went through the standing of the individual plaintiffs.  He had questions that he would raise regarding individual plaintiffs currently living within the NY eruv, but since other plaintiffs, including the BREA clearly have standing, it wasn’t an issue on which he felt the need to dwell.

Preliminary Injunction


Judge Vazquez seemed to indicate that RLUIPA would not play a role in the litigation, instead focusing solely on first amendment issues. Judge Vazquez quoted from the East End Eruv action in the Hamptons and said: “The Court found that a license does not rise to an actual interest in real property under the statute, and I was going to ask plaintiffs for cases to the contrary. I was not able to find any.”


When discussing plaintiff’s argument that the USR ordinance is unconstitutionally vague (to the point a party wouldn’t be able to tell what it legally covers), Judge Vazquez took issue with the term “matter”.

“As to the issue as to whether the ordinance is unconstitutionally vague, certainly the term “matter” is a broad term and gives the Court concern. I don’t — it seems as though the town is not removing all matter from the utility poles. At least based on the pictures. They may have removed more sizeable matter, which is a somewhat ambiguous term. But there’s other things, including plaque strips and nails and staples and tacks, and it really raises the question of, is the town enforcing that as to all matter, as the ordinance provides, or just some matter.” (emphasis added)

The Judge said he didn’t have enough information to determine whether or not it was vague enough to be unconstitutional. Since there were no definitions provided for “matter” and the parties didn’t provide dictionary definitions, he said he would need additional information to support those arguments.

NJSA 48:3-19 (Municipal consent)

Next, Judge Vazquez discussed the requirement Upper Saddle River says exists on the State level, in a statute that requires municipal consent when using poles that belong to another.

The statute states:

“The consent of the municipality shall be obtained for the use by a person of the poles of another person unless each person has a lawful right to maintain poles in such street, highway or other public place.”

The Judge indicated that despite the fact the statute has been on the books since at least the 1960’s when it was last updated, he couldn’t find even one case interpreting that statute.  He noted that it wasn’t brought up in the Tenafly litigation nor other eruv related actions and would need more information to see if it was applicable. Judge Vazquez further stated:

“Truthfully, as the parties rely upon it, defendants did not submit sufficient information to show that it applies.”

He also questioned whether or not the preceding statute, 43:3-18 needs to be read in conjunction with it, which would change the meaning, as plaintiffs argue in their briefs.

Standard of Revue

The federal courts use different levels of review to determine how to answer questions.  Here, that has to do with how badly a municipality can violate your rights before the court is allowed to tell them to stop. Core constitutional protections have a much higher bar to get over than statutory ones.

The level of review to be used by the court is a crucial determination as to how difficult it would be to enforce the statutes in question against an eruv.

Irrelevance of Discriminatory Intent

Judge Vazquez also questioned if a determination that the ordinance was “facially neutral and generally applicable”, was good enough, due to the findings in the Tenafly action which looked at the “effects of the statute”.

Despite claims by the defendants that discriminatory intent in the drafting of facially neutral, generally applicable ordinances is irrelevant, the Judge stated that he’s not going there.

“Them [sic] also say, at best, it’s an open question at the Supreme Court level. But to the extent it’s an open question at the Supreme Court level, I look to the circuit, and Tenafly clearly says I should consider whether there’s discriminatory intent in reading the law.”

The judge said that he looked at the Town ordinance history and said he thinks “the plaintiffs have raised real concerns about a discriminatory intent in invoking this law, and that the effect was to only harm the plaintiffs.” He said it was an open question as to whether that rose to “a possibility of success or a probability of success”, but wanted to give the parties the benefit of his thoughts.

USR’s Claim that the Ordinance had to do with Signage and was Neutral

Judge Vazquez went through the history of the claims surrounding the reasons for the ordinance.  He spoke about the claims defendant offered regarding political signage.  He noted that there was no evidence proffered by the defendants of concern, at the time, over political signage and that the only evidence appeared in the form of after-the-fact certifications that problems existed, in the past. He questioned why this was an issue that needed redress with a new ordinance, since the town already had a sign ordinance that dealt with the “major concern”.

“To the extent they were worried about signs, they already had an ordinance on the books to confront that.”

He spoke about how the ordinance followed almost immediately, after a closed session meeting in which the eruv was discussed.

Then the judge noted:

“Defendants say I cannot infer any discriminatory intent from the mayor’s comments. Maybe, but maybe not. Timing can be extremely important in looking for reasonable inferences.”

He distinguished the present case from the Tenafly case because in Tenafly, the town had a long-standing ordinance as opposed to the present situation where a new law was enacted once an application for an eruv surfaced.

“What we do know for certain, is that the mayor in the closed session was aware of the eruv, and then it appears in the next session the law was amended. So I do not think, when the defendants say I can’t draw any negative inference from it, that they’re correct.” (emphasis added)

He seemed to question why an ordinance dealing with signage needed to be amended again… in order to deal with problematic… signage.  He also stated that he didn’t see any issue the town was having with devices, but now the ordinance was being amended to add the term “device”, which he noted the town is using in connection to an eruv.

The Judge referenced a 2015 request from O&R regarding signage sent to the Township, questioning whether the new law was even effective at solving the stated objective that the old AND new law were already capable of handling. Judge Vazquez also noted that “it’s not lost on the court” that the same group that complained on multiple occasions about signage was the organization that drafted an agreement with the Vaad HaEruv, and that to the extent O&R did have problems with signs on poles, they clearly didn’t see the eruv as being in the same category.

Consistent Enforcement

The Judge noted that USR has claimed the ordinance in question has always been consistently enforced, that they have training for police officers and that they have officers on patrol.

Then he questioned the violations for which the town was not aware, until plaintiffs pointed them out in their filings. Since some of the items were permanent, like mailboxes, the judge said the court has concerns about the claim that USR was always enforcing this ordinance.  He questioned how they could have been there for so long if the town did have training and had police officers on patrol.

The installation of the eruv

After a tick-tock of the various meetings and conferences between the plaintiffs, the police, code and enforcement officials and the Town’s representatives, the Judge noted that they were given a meeting with the USR police department who were responsible for enforcing the ordinance.

Judge Vazquez questioned the position of USR that the eruv could proceed “temporarily” because a) there was no indication that the eruv would be a temporary structure and b) it seemed as if the eruv was being considered by the Borough — a claim they say never occurred.

Judge Vazquez said it causes the court concern that the borough’s administrator, Preusch, learned from council that the eruv needed approval from the governing body because it seems to contradict claims that “everybody knew about the ordinance and was enforcing it”.  He said that “it doesn’t appear that anybody who was charged with enforcing the ordinance, knew about it.” (emphasis added)

He went into detail on the meeting held with an Upper Saddle River code official, a property maintenance officer and Town officials (including the Town’s administrator).  He indicated that plaintiffs did exactly as they were told at the meeting and went to see the police department, who were in charge of enforcing the code.

The judge noted that after meeting with the police chief, the town claims that the police chief didn’t authorize or condone the eruv, but Judge Vazquez questioned the actions that took place.

“They had just been told three days prior that they were allowed to go forward and go see the Police Chief, and indeed the Police Chief was the one in charge of enforcing the code. So at a minimum, it seems like the Police Chief wasn’t aware of the code or the ordinance that the town now says is being enforced universally by the town at that point. And in fact, it doesn’t seem that any of the town officials, who plaintiffs spoke with, were aware of the ordinance.

So again, that cuts against the claim that they’ve always, that the town has always enforced the ordinance. Because it doesn’t even seem as though the critical people were aware of the ordinance, or that this would be a violation of the ordinance.” (emphasis added)

The judge also questioned the timing of reminders to officers on how to enforce the ordinance, that came directly on the heels of the request for the eruv. He wondered why such reminders would have been necessary had the township truly been enforcing the ordinance, in a neutral and generally applicable matter for years.

The Judge finished by stating the he believed that the final issue was going to be whether the plaintiffs show a possible or a probable success at proving the requirements for a preliminary injunction.

He strongly recommended and encouraged the parties to talk to their clients and decide if it would be fruitful to see if a resolution can be reached.

Judge Vazquez did say that once he received answers to the questions he posed throughout the hearing, he would be able to reach a decision.  But it was his hope, that the parties could come to a resolution, especially one that involved the other towns.

The parties met in private and came back on multiple occasions.  At several points, before, during and after the hearing, the various counsel met with their clients and each other.

After the hearing, Counsel for USR Bruce Rosen stated: “It’s not going to be a slam dunk. I think we really put in a compelling case. We’ll see what happens.”

Yes, we will.  And Eruv Litigation will keep you posted.”

Stay tuned.

The Expert On Eruvs Responds To David May’s Wild Idea

Last week, Mahwah Councilman David May went before the Bergen County Freeholders and requested that they work with various parties to create a county-wide eruv, here in Bergen County.  Despite the serious issues initially identified with the proposal, Mr. May and Mahwah’s Council President, Rob Hermansen, insisted on pursuing it.  They asked for dialogue and questioned why anyone would be against such a plan.

Eruv Litigation went to one of the foremost authorities on eruvin and posed the question as to whether such a plan was even possible.

Rabbi Yosef Gavriel Bechofer*, author of The Contemporary Eruv, was kind enough to evaluate Councilman May’s request for a “county-wide” eruv.

Here is his analysis:

The Ritva (Eruvin 22b) and his Rebbe the Ra’ah hold that walls are not valid when they enclose too broad an area. The Nishmas Adam Klal 49 and the Maharsham 4:1 write that the extent of a person’s unaided eyesight is sixteen mil (mil = 2000 amos). However, scholars have noted that the curvature of the earth prevents one standing at ground level from seeing much further than six mil; and, therefore, that it is questionable whether the source upon which the Nishmas Adam bases his ruling may be applied to the Halachos of Eruvin.
Besides for the issue of size, there is the issue of what the eruv would enclose. Within a large eruv there are likely – nay, there are inevitably – karpeifos (uninhabitable areas that invalidate an eruv) and intercity highways (which are considered reshuyos ho’rabbim – public thoroughfares that invalidate an eruv).
In short, a [Bergen] county-wide eruv is a practical impossibility.
So there it is.  In addition to this idea being bad from a civics point of view, this proposal makes no sense from the perspective of Jewish Law (halacha).  So much for it being “forward thinking“, Mr May.

* Rabbi Yosef Gavriel Bechhofer is the author of one of the most popular tracts on the subject of metropolitan eruvin, and serves as a consultant to communities across the continent, facilitating the building and maintenance of urban and suburban eruvin.


The Eruv Litigation Moves To The Courtroom

Tomorrow, January 9th at 10:30am, the Upper Saddle River Eruv Litigation will formally be heard before Judge Vazquez as the lawyers for both sides argue the motion for a Preliminary Injunction in Friedman, et al. v. The Borough of Upper Saddle River.

For those not familiar with the process, whenever you request something from the Judge, by way of making a “motion”, there are three parts.  First comes the actual motion by the moving party.  Then, the other side gets to file an opposition.  Finally, the original moving party gets a reply.  Once all three documents are in, the Judge can either decide the motion based on the briefs received or he can ask  lawyers to come in and argue the motion before him and ask questions.

There are two motions that were filed together in this case.  One was filed by the plaintiffs (the people seeking the eruv) for a preliminary injunction.  The other motion was filed by the Borough of Upper Saddle River (the people trying to stop the eruv), to dismiss the case.

At this point, both motions are fully “briefed”, meaning that the motion, opposition and reply have been filed.  Judge Vazquez has requested the attorneys come in to argue the motion for a preliminary injunction tomorrow.  No argument has been scheduled for the motion to dismiss.

The Preliminary Injunction Motion Documents

In the course of the litigation, the Plaintiffs made the motion.  You can read it here.
Then, the Borough of Upper Saddle River filed an Opposition, laying out it’s reasons against the motion.  You can read the opposition here.
Finally, the plaintiffs filed a Reply to the Opposition in further support of their motion.  You can read the reply here.

What is the Motion for a Preliminary Injunction asking the Judge to do?

As mentioned in the previous post in October, the motion requests the Judge to grant three forms of relief:

  1. Enjoin the municipality from removing the Eruv during the litigation.
  2. Enjoin the municipality from disrupting / preventing maintenance of the Eruv or restoration of damaged sections.
  3. Permit the Plaintiff to complete the planned expansion of the Eruv in the Borough.

What are the sides arguing?

The Plaintiffs have several arguments they put forward in their motion.  The start out by arguing that there is a constitutional right to maintain and expand the eruv.  Not surprisingly, the Borough disputes this and says that as long as a statute is neutrally applied and generally applicable, you do not have a right to put up an eruv in a Township.

Plaintiffs then go through the enactment of USR’s ordinance, banning signage and devices on poles, and argue that they were enacted with “invidious discriminatory intent that violates the first amendment’s free exercise clause”, because the ordinance effectively banning the eruv came immediately after the request for an eruv was submitted to the borough, and discussed in a closed session meeting. They also offer contemporaneous comments from residents which provide context for the reasons the council acted with discrimination. The Borough counters that Ordinance 16-15 is constitutional.  They acknowledge that the timing of the ordinance did coincide with the timing of the request for the eruv, but contend that the ordinance was in the works for years and related to sign problems they had in previous election cycles.  They say that “the effort to pass such legislation got sidetracked due to other more pressing issues and was not revisited for almost a year”.  Defendants claim the ordinance is neutral and generally applicable and even if there was discriminatory intent (which they deny), it wouldn’t matter as it would be “legally irrelevant”.

The plaintiffs also allege that USR’s enforcement has been selective and some larger and more conspicuous signage / objects than lechis (photos of which they include in exhibits to the motion) remained up, as the eruv received special treatment. They contend that nowhere “is there a single instance – not a summons, not a code violation, and not a citation – in which USR enforced the Ordinance form the time it was enacted in October 2015 until Plaintiffs filed this lawsuit in July, 2017.” As you can probably guess, the Borough denies this claim and says that it has consistently enforced the ordinance and any signs the plaintiffs point out in their motion are because “enforcement need not be perfect to show it is not discriminatory”.

The Plaintiffs then argue and the defendants deny that there is no compelling interest (or any interest) in barring an eruv.

The Plaintiffs allege that the ordinance (16-15) barring objects from telephone poles, is “unconstitutionally vague” because it doesn’t include definitions for terms and wouldn’t permit the average person to know what was prohibited.  [You can read our post regarding this issue here -EL].  The Borough disputes this claim indicating that the terms used are plain and ordinary and a person of “ordinary knowledge” can read the Ordinance and “understand its’ plain and ordinary terms.”

The Plaintiffs put forward the argument that the lechis are “authorized or required by law”, which satisfies the State statute and municipal ordinance in dispute. The Borough says that the interplay of State statutes and the Borough Ordinance require specific permission to establish an eruv.

Finally, both sides go through the irreparable harm and Public Interest issues.  Plaintiffs state that irreparable harm would happen to the plaintiffs if the eruv was removed and the balance of hardships of the parties and the public interest favor an eruv.  The Defendants claim that no harm exists and “there is no first amendment right to avoid neutrally-worded laws of general applicability”  USR claims that permitting an eruv would create a “slippery slope” in which groups may litigate concerns instead of dealing with the appropriate governing authorities, usurping their power as an elected body.  Meanwhile, Plaintiffs claim this is a private contractual issue between the plaintiffs group and the utility company in which there’s no role for the USR council.

What happens next?

After oral argument, the Judge can rule immediately or he can take time to consider the arguments and rule at a later date.  Either way, Eruv Litigation will continue to monitor the action and provided information as new entries get filed on the court’s docket.

Stay tuned.