[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: http://www.eruvlitigation.com/home/federal-litigation/upper-saddle-river/

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.)

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.

Mahwah: David May explains why the Township is on the wrong side of their civil rights lawsuit

There’s a reason that attorneys ask clients not to speak while they are in the midst of litigation.  Sometimes they can say things, especially truthful things, that destroy the case they are trying to make.

Mahwah Councilman David May came before the Bergen County Freeholders last week with a proposal to create a “county-wide eruv”.  If you want to see why this is a half-baked idea that shouldn’t have been presented, you can see my first post here, which has a set of open questions Mr May refuses to answer, despite his repeated requests for dialogue.

But now, despite his efforts to say that this concept is unrelated to the civil rights lawsuits brought by the State of New Jersey against the Town and his council individually, Mr. May is coming under criticism for such an ill-suited idea, clearly intended to shift the conversation away from the elephant in the Mahwah council chambers.

One of those criticisms came from Jacob Sasson, an attorney with previous experience teaching the First Amendment, on Facebook (you can read our similar criticism here). 

This is an astute observation by a professor that is knowledgeable in the subject matter.

Then came the reply:

“An eruv is barely noticeable attachment to telephone poles”.

Why exactly are these Civil Rights lawsuits against Mahwah happening?

On July 21st, in a letter from Mahwah’s zoning officer to the Eruv Association, Mr. Kelly wrote that “the installation of an eruv would constitute a sign on a utility pole”.  He further states that “[s]ign shall mean any device for visual communication that is used for the purpose of bringing the subject thereof to the attention of the public”.

Does the eruv qualify as a “device for visual communication”?

“An eruv is barely noticeable attachment to telephone poles”
– Councilman David May

We couldn’t have put it better ourselves.

Mahwah’s answer to the Federal complaint is due on January 12th for the suit brought by the Eruv Association and on January 30th for the suit brought by the State of New Jersey.

Deadlines and case information may be found here: http://www.eruvlitigation.com/all-eruv-related-litigation/


When Mahwah needed leadership, their leaders chose silence

This Thursday, Mahwah will vote on the second reading of Ordinance 18201, which rolls back the ban on out-of-State residents using Township parks. The ban was put in place after hysterical recountings of a “Jewish invasion” spread throughout social media and within the halls of Town Council meetings.

The vitriol on display since the summer has been deplorable.  It’s good that the pendulum has started to swing back.  But Mawah’s Council President, Robert Hermansen, wants it to stop on a dime — right back in the center where this all began.  That’s not how pendulums work.  In order to reverse course, it’s helpful to know how you got into the ditch. When it comes to confronting the animosity, fear and hatred which is infused in Mahwah’s discriminatory ordinances, the Council has shown no sign of being self-aware.

I and many others have been calling for the repeal of this ill-advised gambit against neighboring Hasidic Jews, since July.  So have a handful of Mahwah residents.

Watch and contrast how the Council treated vile comments from a resident at the last  meeting, with comments from the East Coast Director of the Simon Wiesenthal Center: 

At the December 14th Council meeting, a resident approached me Read More

BREAKING: DOJ investigation into discriminatory zoning in Jackson, NJ

As reported by JacksonLeaks.com, the Civil Rights Division of the US Department of Justice has launched its own investigation into Jackson’s municipal laws over possible violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA).

As was reported yesterday, the NJ State Attorney General’s office has also sent a subpoena to Jackson officials requesting documents related to their ban on eruvs within the township.

The DOJ’s request (embedded below) focuses on two ordinances (3-17 and 4-17) dealing with school and dormitory requests by a religious organization, after bans were put in place by Jackson officials.  It requests 10 years worth of zoning and planning documents to see if there is a pattern of targeting unwanted groups or part of a coherent strategy on zoning.

From the DOJ demand letter:

“Our investigation will also focus on whether the Township, by enacting these Ordinances, has engaged in discrimination on the basis of religion by effectively prohibiting any religious organization from establishing a school with religiously affiliated housing, including a yeshiva, in Jackson.”

Read More

Mahwah is starting to reap what they have sown

On Thursday evening, Mahwah introduced Ordinance 1820, which rolls back the restrictions on non-NJ residents entering their parks, created by Ordinance 1806 this summer.

Mahwah’s attorney, Brian Chewcaskie called the move a “strategic recommendation by council” and it seems calculated to do whatever is necessary to appease the outgoing attorney general, who filed a 9 count complaint against both the Township and it’s Council individually, for passing animus infused ordinances against Hasidic Jews in neighboring New York communities, that were enjoying the local public parks.

At the meeting, there was no sign or acknowledgment by the Council that these restrictions, which prompted warnings and alarms from every level of government earlier this year, were wrong on their face.  There was no contrition.  There was no Read More

[MAHWAH UPDATE]: Shifting Into Reverse

Mahwah, NJ has been in the spotlight since the summer for passing ordinances meant to exclude Jews from neighboring Rockland County, NY.

In passing Ordinance 1806, the Town sought to ban non-State residents from parks.
In it’s proposed Ordinance 1812, the Town sought to strengthen it’s ban on items affixed to utility poles (as Jewish groups sought to establish an Eruv on them).

This Thursday, according to the agenda posted online, both are being addressed (watch live starting at 7:30pm on our Facebook page).

Ordinance 1806:

Ordinance 1806 changed Section 9-1.3 to remove “and nonresidents alike”, thereby preventing Jewish groups from NY to use the parks. You can see the before and after language here:

Read More

[UPDATE] SETTLEMENT: Jackson, NJ Eruv can be built (resolution pending)

UPDATE: This may not be a done deal just yet.  As per TLS:

There have been reports today in various media outlets claiming that the Orthodox community’s lawsuit against Jackson Township has been “settled” following the Township’s introduction of a resolution to allow Eruv placement on utility poles.

These reports are blatantly inaccurate.

Rabbi Avi Schnall, Director of Agudath Israel’s New Jersey Office, the lead plaintiff, explains the status of the lawsuit:

“We are currently engaged in mediation with Jackson Township,” Rabbi Schnall told TLS. “While we are encouraged by the Township’s Resolution, no settlement has yet been reached. We are not at the end, and much more still needs to be worked out. We remain hopeful for a positive resolution.”

Jackson, NJ has entered into a settlement with Agudath Israel, a Jewish group attempting to create an Eruv over objections from the Township. The agenda lists Resolution 368R-17 as pending.  The Resolution (embedded below) calls to:

“Ratify interim settlement and stand-still agreements in connection with pending litigation and provide municipal consent for residents to seek utility company permission for space on utility poles”

It goes on to note:

“That permission and authority are hereby granted for the placement of eruvim/lechis on poles erected by utilities that have the lawful right to maintain the poles within the public right-of-way in the Township of Jackson provided the utility company consents to such placement and there is compliance with all applicable Federal, State and Local laws regarding safety requirements related to the use of the public right-of-way.”

As per the Asbury Park Press:

“The resolution to be voted on by Jackson council members specifically notes “exorbitant amounts of legal fees” as a reason for the settlement.”

The settlement comes a few days after the Village of Pomona lost a costly Federal Court battle over zoning created to prohibit a Jewish group from building in the NY area situated a few miles from Mahwah, NJ where a similar court action is pending.

There is a closed session meeting in Mahwah, NJ to discuss litigation today, Tuesday December 12th.

Dec 13 - 368R-17 - Authorize Consent to Request Space on Utility Poles