History of Eruv Litigation in Bergen County
Upper Saddle River:
On August 18th, 2015, in a closed session meeting, USR Mayor Minichetti reported that “an agreement between Vaad Haeruv and Rockland Electric Co. allows for the installation of a ERUV system on poles owned by Orange and Rockland Utilities.” A mere two weeks later – at the very next closed meeting session – USR’s attorney, Robert Regan, explained that an ordinance “that prohibits anything on utility poles . . . will be introduced at the Regular meeting.” And indeed, Ordinance No. 16-15 was introduced that same night, and approved at the next meeting of the Borough Council, held on October 1, 2015.
Because USR passed the Ordinance with an intent and motivation to proscribe particular conduct, the Ordinance is facially unconstitutional. After the Township demanded the Eruv be taken down by Orange & Rockland and gave an ultimatum to the Eruv Association, litigation was commenced.
Around June 1st, 2015, the Vaad haEruv and Rockland Electric Company entered into a license agreement, through which the Utility Company granted an express license to allow the Vaad haEruv to affix lechis to certain of the Utility Company’s poles in Bergen County for the purpose of creating an Eruv. The construction of the Eruv, based on that license agreement began in June, 2017.
Shortly thereafter, due to misinformation, fear and outright xenophobia, a portion of the residents started to attend council meetings demanding the Eruv be removed. The Mayor of Mahwah issued a public statement on July 19th, which read in part:
“Advice by our attorney is that we cannot do anything about the installation of these plastic pipes on these utility poses establishing a ERUV.”
“Normally O&R does not allow anyone to place anything on their utility poles without permission but because of several Federal Law suites, both BPU and O&R are obligated to allow these ERUV markings, But they have NO OBLIGATION to notify the municipality. (emphasis in original)
Following the public outcry, some council-members sought additional ordinances that would prevent an Eruv from being constructed within the Township. One councilman asked the zoning officer and attorneys if the ordinance dealing with fences could be used to disallow it. Others focused on sign ordinances, going as far as to offer a new version (ordinance 1812) to supplement the existing sign ordinance.
On August 10th, 2017, five days prior to a scheduled meeting to find a settlement, the Township Council voted to issue summonses to the Eruv Association. The next day, litigation was commenced.
The discriminatory nature of how ordinances were proposed and enacted has led to the Attorney General for the State of New Jersey filing suit against the Township of Mahwah as well as the individual Council-Members charging them with excluding Orthodox Jews and likening their conduct “to 1950s-era “white flight” suburbanites who sought to keep African-Americans from moving into their neighborhoods.”
In 2015, Orange & Rockland Utilities granted express licenses to Vaad haEruv to affix pvc and string to poles owned or used by the Utility Company in Montvale.
Also in 2015, the then-mayor of Montvale, Roger Fyfe, issued a public statement on Montvale’s website, www.montvale.org, recognizing that an eruv is constructed “so as to be unobtrusive and nearly invisible to the general public,” and that it “has been universally held that the construction of an eruv serves ‘the secular purpose of accommodation’ and does not violate the separation of Church and State.” Mayor Fyfe properly recognized 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.” Mayor Fyfe further noted that eruvin “are located all throughout Manhattan, and I personally have never noticed one in all my time in the City.”
Despite the initial permission, Montvale reversed course and informed the Eruv association they may not construct an Eruv in Montvale, NJ. On the afternoon of July 10, 2017, that Montvale Mayor Michael Ghassali ordered Captain Sanfilippo to cease any work on the project. On July 24, 2017, Mayor Ghassali confirmed to a reporter from the Daily Voice newspaper that he personally issued a stop work order to prevent completion of the eruv.
Montvale claims that ordinance §58-16 prohibits an Eruv under a section of the local code that concerns “litter”.
“[n]o person shall post or affix any notice, poster or other paper or device calculated to attract the
attention of the public to any lamp post, public-utility pole or shade tree, or upon any public
structure or building, except as may be authorized or required by law.”
Litigation commenced in October against the Borough of Montvale.
Additional information can be found in blog postings here.
After a piece of land was purchased in Jackson by a developer for the purpose of building a religious school to service its growing Orthodox population, the town’s council responded in 2016 and 2017 by passing a series of restrictive ordinances aimed at stifling the school including: banning trailers, banning dormitories and ultimately banning the construction of schools in most zones in Jackson. WR Property, the developer, and Agudath Israel, an Orthodox Jewish organization representing it’s members in Jackson, filed a joint lawsuit alleging discrimination. They claim that similar schools have been recently constructed in Jackson and that the laws were passed solely to prevent them from building one that happens to cater to Jews.
At the same time, the township was aggressively working on another ban: ridding the town of eruvin. A “seldom enforced” ordinance from the 1950s, originally passed to ensure thoroughfares were free of ice and snow, was found by the township attorney and used as the basis to require removal of eruv poles as they were in the public “right-of-way”. The existing law did allow exceptions to be granted by the council, but when an exception was requested by the newly formed Jackson Eruv Association, the council responded by passing a new law in September 2017 removing the clause in the law which allowed anyone to grant exceptions. This change was added to the Agudath Israel lawsuit as another example of discriminatory lawmaking, aimed at preventing the religious practice of Orthodox Jews.