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:17cv5512_Transcript_2018-01-09