The High Price of Hate

AG Lawsuit Update and Invoices for Northern Bergen County related litigation

Mahwah was in court this week having settlement talks with lawyers from the NJ Attorney General’s office. The township council was charged with discrimination after passing an ordinance aimed at banning Hassidim from their parks & trying to prevent the final segment of the Rockland Eruv from running through a corner of the township. These actions have cost Mahwah dearly, both monetarily and in terms of reputation. Bordering Upper Saddle River has also rung up high legal costs, while nearby Montvale emerged relatively unscathed overall.

Eruv Litigation has obtained invoices from each town. These invoices are presented below, but in general reveal a few interesting facts:

  • The three towns were in communication from the beginning, and spent time analyzing each other’s legal filings and developments.
  • All three towns received subpoenas from the NJ Attorney General’s office around the same time, but in the end only Mahwah was sued by the State.
  • Special counsel worked on auxiliary items such as reviewing OPRA requests and advising on police reports (a number involving Facebook Group “Citizens for Better Upper Saddle River” founder, Erik Friis).


Mahwah unleashed its actions amidst an outpouring of hate and bigotry, egged on by their council. To defend against the two federal court cases (see here and here) that it faced as a result, Mahwah hired a bevy of law firms with random specialties.

The eruv case was handled by three separate law firms, who together never made a single filing or motion in court for any of the cases against the Township:

  1. Municipal law experts Cleary Jacoby, Mahwah’s usual special counsel, who billed a total of $69,690.65 (invoice)
  2. Securities and commercial law firm Holwell Schuster, who billed a total of $37,402.44 (invoice), and
  3. First amendment lawyers Nelson Madden Black, who billed a total of $40,912.5 (invoice)

The still ongoing Attorney General suit, currently in settlement talks, is being handled by two firms:

  1. Cleary Jacoby again, who have billed a total of $43,826.62 to date (invoice), and
  2. Methfessel & Werbel, who work primarily in insurance law and have billed a total of $19,563.16 (invoice) to date

When including the $10,000 paid by Mahwah to cover the eruv association’s legal costs in a settlement, this is a total of $221,395.37 spent on litigation (to date) due to the town’s actions. Note that this number will increase as the Attorney General lawsuit progresses, and may include a penalty paid if the case is lost or settled.  Mahwah’s request to file for dismissal of the suit was denied this week and the case is currently set for fact discovery which is to be completed by September 30th, 2018.

Upper Saddle River

In addition to having the best case (see here), USR had a veritable anti-eruv dream team working their defense:

  1. Bruce Rosen, hired as lead attorney, is the only person to ever have any measure of success against an eruv; his legal arguments won the first round in 2001 in favor of the town of Tenafly before the ruling was reversed on appeal. His firm billed USR a whopping $402,521.48 (invoice), which included writing extensive legal briefs and a few appearances in court.
  2. Joining as adviser was Marci Hamilton, professor of constitutional law, and the lawyer who had the predecessor to RLUIPA declared unconstitutional. She billed only $5000 (invoice) for her involvement, although she tried to cash in on the esteem of her University.
  3. Finally, Joel Kurtzberg from Cahill Gordon provided auxiliary support to the USR litigation team, billing $97,958.80 (invoice)

After a disastrous preliminary hearing, Upper Saddle River settled, agreeing to allow the eruv to remain if moved as close to the NY border as possible, and pay $75,000 of the eruv associations legal costs. This brings their total costs to $580,480.28.


Among the three municipalities, Montvale took a different path. The town administration signaled their willingness to settle their case first, with Mayor Mike Ghassali holding a two hour town hall where he said they will “accommodate their neighbors to the north”. The town used only their usual township attorneys, Boggia and Boggia, who billed just $8,148 (invoice) to negotiate an agreement.Combined with the $10,000 settlement they paid, they spent only a fraction of what the other towns did at a total of $18,148. Montvale’s settlement was essentially the same terms, if not better, then the others, but they paid far less and really did not end up caught up in the controversy at all.

A Tale Of Three Councils – The Failure of Robert Hermansen

Today, the eruv actions in Mahwah and Montvale came to a close1.

While both towns have come to the same inevitable conclusion, that an eruv will stay on the telephone poles through a small area of the municipalities, the actions of their elected representatives demonstrate the role effective leadership can play during times of change.

Montvale’s residents received notice before any agreements were finalized

Montvale Mayor, Mike Ghassali shows photos of potential lechis to residents and displays a map of potential routes for the eruv.

Below is a photo of Mayor Mike Ghassali at the Town Council meeting which took place on January 31st.  He spoke to the residents about the reason for the eruv’s path into NJ.  He talked about home values, stressing the fact that they didn’t change in towns with an eruv.  He went over the options the Borough was discussing with the Eruv Association.  He indicated the homes potentially affected under each plan.  He spoke about the experiences of Tenafly over the course of their eruv litigation.  He showed maps of the potential paths for the eruv, as well as photos of possible lechis under consideration.  He provided answers to questions.

This is how government should function.  Leaders are responsive to the people they represent.  This meeting took place a couple weeks before an eruv settlement was signed.  You can watch the presentation Mayor Ghassali gave to residents here:



Transparency in Upper Saddle River

At the start of the eruv controversy in Upper Saddle River, the council and Mayor brought Bruce Rosen (the attorney that handled the Tenafly Eruv action for the Township of Tenafly) to speak at the public meeting on August 3rd.  You can hear him speak in the clip below.  He stated that “courts are hostile to towns that try to stop eruvs”.  He spoke about the eruv case in the Hamptons.  He talked about the holdings of the Federal Courts and he answered questions from residents.  Residents asked about whether they can put crucifixes on poles.  They asked about the non-resident status of the eruv association.  He answered the questions about standing and provided legal advice to the municipality in public.

I really encourage you to watch the clip below.

Transparency in Hamptons Eruv Litigation

The actions taken by Montvale and USR were not novel.  When the Hamptons Eruv Litigation took place, the Township tried to be upfront with their residents, as well.  You can see thousands of pages of court documents including legal declarations here on the West Hampton Beach web site.

Mahwah Operated in Secrecy and Seclusion

Compare the behavior of Montvale, USR and Westhampton with that of Mahwah.  Starting in July, the Council had kept information from residents.  Despite repeated requests from residents at meetings, the council refused to provide information about its actions.  Why weren’t summonses issued?  Why weren’t ordinances enforced?

Some of these answers became readily apparent through Open Public Records Act request, although the council’s president, Mr. Hermansen complained about their use at council meetings.

Votes to appropriate money for attorneys were tabled and postponed, eventually to be held at 10am on a weekday.

The Council, at the direction of Robert Hermansen spent hours in closed session while the public waited, desperate for information.  When the council returned, they delayed and offered postponements, pushing meetings to the next day.  It was a veritable war of attrition as the council waited for interest to wane before moving on.

Eventually, a Town Hall was announced by Robert Hermansen and information, at long last, would be offered to the public.  On the day of the meeting, the event was cancelled.  The reason offered, after several days was that the Township was still enmeshed in litigation.  This makes little sense, as it was in the same litigation when the meeting was announced.

Bergen Record: Mahwah Council delays decision on eruv lawsuit
Bergen Record: Mahwah council delays vote on $175,000 to fight eruv lawsuits

Meanwhile, the eruv litigation has finally come to an end.  The case is closed.  The parties are done in the courtroom.

All Mahwah residents should agree on one thing, they have not been well represented. They have been misled, deceived, bullied, and eventually, just had information kept from them.

Now, the case is over and the people of Mahwah deserve answers.  And they deserve the ability to ask question, without being interrupted.

Mahwah needs adults at the helm.

  1. A letter to the court indicates that USR has been in settlement negotiations and a hearing is pending for Feb. 21st should they not be able to come to a resolution


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.

UPDATE 2: Information and paragraph numbers in the settlement were added for ease of reading.

In settlement papers filed with the court today, Montvale has given up on their six month campaign aimed at prohibiting an eruv in the Borough.

The agreement contains an Exhibit A showing the agreed upon path of the Eruv through the Borough.

In a vote yesterday, the Montvale Council agreed to settle claims brought by the Bergen Rockland Eruv Association against the Municipality for threatening to prohibit an eruv erected in a section of the Borough.

Within 30 days, the Borough will pay the law firm of Weil, Gotshal & Manges, LLP $10,000 to cover some legal costs, pursuant to paragraph 20 of the agreement.

The Eruv Association will attempt to use black narrow strips or black or brown color for the pvc piping on the poles (called lechis) unless required to use another color by the Utility companies.

Montvale will have 45 days to get necessary permissions to use the path identified in the accompanying map.  If they cannot get the required permission from private property owners, the BREA may use the map included in the original complaint:

Aside from the $10,000 payment, each party will bear their own litigation costs which may have been hundreds of thousands of dollars had this gone further.

Pursuant to the agreement:

  • Montvale will secure all consents necessary to allow the eruv to be constructed, and checked on a weekly bases in public areas (paragraph 9).
  • Montvale will grant any applications for new posts if necessary to effectuate the plans in the map (paragraph 9).
  • Montvale will make sure the BREA has consent to enter private properties to check on the Eruv at least three times per year, although inspections will be conducted from roadways and publicly accessible areas whenever possible. (paragraph 10).
  • If any approvals are required after the initial eruv goes up, Montvale will promptly grant the approvals (paragraph 11)
  • If Montvale and the Eruv Association can’t get a valid eruv up in 45 days based on the map provided in exh. A, the Eruv Association can put up the eruv according to the plan outlined in the original complaint (paragraph 12).
  • If Montvale ever moves to underground electric cabling, they agree to work in good faith to reestablish the eruv (paragraph 13).
  • No public funds will go towards the Eruv (paragraph 16).
  • The Borough will cooperate with BREA in any challenges brought against Montvale challenging the enforceability of the agreement and BREA shall handle the legal defense (paragraph 18)
  • Plaintiffs will not initiate any new litigation against Montvale for at least 2 years as long as they abide by the agreement (paragraph 19).
  • 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 (paragraph 19).
  • Montvale will provide $10,000 for attorneys fees to the plaintiff’s law firm, Weil, Goshal & Manges LLP (paragraph 20).
  • Montvale recognizes the decision in Tenafly, that “the erection of the eruv is not an unconstitutional establishment of religion under the First Amendment.” (paragraph 21)
  • Montvale will not contest or challenge O&R or Verizon’s authority to enter into contracts with BREA (paragraph 22)
  • Montvale will not adopt any ordinance or resolution prohibiting an Eruv (paragraph 24)
  • If the Township violates the agreement, the plaintiffs may seek an expedited and immediate injunctive relief through an order from the court (paragraph 26).




Everyday Racism: 84 years ago and today

As Edmund Burke once said: “The only thing necessary for the triumph of evil is for good men to do nothing.”  For the past 7 months in NJ, we have seen a lot of good people saying nothing — as hatred and animosity towards the (((others))) came to the fore.

When a Mahwah Council-member (he has since resigned) mocked a Holocaust survivor and pointed to the “money-trail”, the good people were silent.

Racism isn’t new and hating people because they are different will never go out of style.  But between the violent outbursts we learn about in civil rights battles, there was always an everyday racism.  It’s the story of average, everyday people.  People that didn’t seem to be expressing active hatred.  People that seemed to just want to continue going about their daily lives the way they always had been.

It’s the everyday attitude that lets hatred proliferate when it ceases to be the muffled noise, and moves to the streets.

Eighty-four years ago, silence by good and decent people in Europe let evil triumph, as people took to the streets to advocate the destruction of the Jewish eruv and threw stones through windows of the Jewish community president’s home.

I have seen similar comments of those who threaten to tear it down today.  Not in Europe, but here in New Jersey.

Perhaps, those that don’t learn from history ARE doomed to repeat it.  What lessons are you learning?

Jewish Rite Nearly Starts Rumania Riot

Police Force Brought Out When Gentiles Protest Community Action

(Jewish Telepgraphic Agency)

BUCHAREST, Feb. 13. — The combined efforts of all the members of the police force of Dej. Transylvania were required today to quiet disturbances which arose when the Christian population of the town protested against the execution of a Sabbath duty by the Jewish community of Dej.

When the members of the Jewish community appeared in the streets carrying wire to be used in partitioning toff a part of the town for the purpose of establishing an “eyrev” for the Sabbath, the Christian population began a demonstration, inisting that the “eyrev” symbolizes Jewish possession of the township.  The demonstrators marched through the streets of the Jewish quarters, breaking windows and damaging the house of the Jewish community president.

Although the police of the town, which is predominantly Jewish succeeded in establishing order, excitement still continues in the atmosphere.

(According to Jewish custom, which prohibits the carrying of articles on the Sabbath, except in one’s own home, an “eyrev” — or wire surrounding a district where things may be carried — can be fixed to poles surrounding the district.)

Source [JTA]:

Jewish Daily Bulletin 1934-02-14

[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:


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.

[BREAKING] [UPDATE] Montvale, NJ working to settle suit over discriminatory ordinances

UPDATE: A stipulation was filed with the court today at 1:37pm extending the deadline for Montvale to respond to the complete through January 31st.

As was reported by, Montvale, NJ is seeking to settle a federal lawsuit filed by Orthodox Jews in Rockland County, NY over discriminatory ordinances that were created in the weeks after a request for an eruv was initiated in the borough.

While no formal court documents have been filed to confirm this, the Record reports that “Montvale and the Bergen Rockland Eruv Association have been negotiating outside of court to come to a “mutually acceptable plan,” Mayor Mike Ghassali confirmed Wednesday.”

Eruv Litigation will continue to monitor the court actions and post documents for the public.  The response to the complaint in Montvale’s Federal Court case is due today.

FAQFrequently Asked Questions about eruvs and related lawsuits

LITIGATIONClick here to see the status of all current Eruv related litigation 

BACKGROUNDClick here to see the developments that led to the litigation

The suit against Montvale was filed on October 18th of this year after attempts by the Plaintiffs lawfirm to settle the issue were unsuccessful.  The plaintiffs also have suits pending against Upper Saddle River and Mahwah, NJ.  The case in Upper Saddle River is set for Oral Argument in NJ Federal Court on Jan. 9th before Judge Vazquez.

In Mahwah, NJ this evening, the Council agenda lists the second and final reading of Ordinance 1820, which will roll back the ban on non-residents using local parks put in place this summer after some residents demanded action against overcrowding in parks by Hasidic Jews.

[UPDATE] Sticker shock: The reality of litigation costs start to arrive in time for the holidays

[UPDATE – new appropriations have been added to the agenda for tomorrow]
[UPDATE #2 – This email chain shows that while the current litigation contract ($50,000) goes through January, 2018, the next contract is already being prepared]
A mere several hundred have packed Town Council chambers since early this spring, demanding that ordinances be enacted to prevent an Eruv (see our FAQ here for information about an Eruv) from being established in a small section Upper Saddle River, Mahwah & Montvale (see map here).  That is a fraction of the approximately 40,000 people currently living in those Bergen County towns, which are now embroiled in litigation. Read More