E. End Eruv Ass'n, Inc. v. Town of Southampton & the Town of Southampton Zoning Bd. of Appeals

EAST END ERUV ASSOCIATION, INC.,DEBORAH POLLACK and SIMCHA POLLACK, Plaintiffs, v. THE TOWN OF SOUTHAMPTON and THE TOWNOF SOUTHAMPTON ZONING BOARD OF APPEALS, Defendants.

CV 13-4810 (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 24, 2014

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. PRELIMINARY STATEMENT

This case is one of three related actions¹ which, at their essence, involve the efforts of certain Jewish residents on the East End of Long Island to establish an eruv -- an unbroken delineation of an area -- which would allow members of the Jewish faith with certain religious beliefs to carry or push objects from place to place within the area during the Sabbath and on Yom Kippur. Compl. ¶ 2. The demarcation of the eruv may be created by using telephone poles, utility poles, wires, and existing boundaries, and by attaching wooden or plastic strips known as "lechis" to the sides of the poles. Id. ¶ 26. Plaintiffs East End Eruv Association, Inc. ("EEEA"), Deborah Pollack and Simcha Pollack (collectively, "Plaintiffs") seek to have the lechis placed within defendant the Town of Southampton ("Southampton") to eventually becomepart of a larger eruv that also encompasses the Village of Westhampton Beach ("Westhampton Beach") and parts of the Village of Quogue ("Quogue") (collectively, the "Municipalities"). Id.

Plaintiffs allege that defendants Southampton and the Town of Southampton Zoning Board of Appeals ("ZBA") (collectively, "Defendants") have unlawfully prevented Plaintiffs from establishing an eruv "[a]t every opportunity." Id. ¶ 5. Before the Court is Defendants' motion to dismiss the Complaint. DE 38. Based upon my review of the Complaint, the arguments advanced by both parties in their written submissions, as well as the applicable case law, Defendants' motion to dismiss is GRANTED to the extent that Plaintiff's Sixth Cause of Action is dismissed, without prejudice, and the remainder of the action is STAYED pending resolution of the Sixth Cause of Action in state court.

II. BACKGROUND

The following information is taken from the Complaint and the parties' written submissions. All facts alleged by the Plaintiffs are assumed to be true for purposes of this motion and are construed in a light most favorable to the Plaintiffs as the non-moving parties. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of New York, 889 F. Supp. 2d 418 (E.D.N.Y. 2012).

A. The Alleged Hardships Imposed in the Absence of an Eruv

Plaintiff EEEA is a not-for-profit corporation formed for the purpose of coordinating efforts toward the promotion and construction of an eruv in certain parts of Suffolk County. Compl. ¶ 23. Plaintiffs Deborah and Simcha Pollack are individuals residing in Southampton who live one mile away from the synagogue in Westhampton Beach. Id. ¶¶ 20-21, 32. Deborah Pollack's elderly mother is too weak to walk to the synagogue, or anywhere outside Deborah Pollack's home when she visits, without a wheelchair. Id. ¶ 32. Because there is no eruv,Deborah Pollack cannot push her mother to synagogue, and her mother must therefore remain home on the Sabbath and Yom Kippur. Id. According to the Complaint, the inability of Deborah Pollack's mother to attend synagogue on Yom Kippur is especially painful since she cannot participate in the traditional memorial ("Yizkor") service for her late husband. Id. Similarly, Plaintiff Simcha Pollack cannot push his elderly father to the synagogue in his wheelchair. Id. Because he cannot attend a synagogue, Mr. Pollack's father -- who is an ordained rabbi -- refuses to spend the Sabbath or Yom Kippur with Mr. Pollack. Id.

The Complaint offers many examples of the hardships imposed on certain observant Jewish residents of the Municipalities in the absence of an eruv. For example, Plaintiffs and other observant Jewish residents of the Municipalities cannot carry prayer books, keys, identification, and other necessary items to synagogue, neighbors' homes, or public meeting and recreational areas on the Sabbath and Yom Kippur because their sincerely-held religious beliefs preclude them from carrying anything in the public domain without an eruv. Id. ¶ 33. In addition, because certain observant Jewish residents are not permitted to push a stroller on the Sabbath and Yom Kippur, they must stay home if they have children too young to walk to the synagogue. Id. ¶¶ 34-35.

The Complaint notes that a multitude of eruvin have been established nationwide and worldwide. Id. ¶ 39. In fact, the first eruv in the United States was established in 1894 in the city of St. Louis, Missouri. Id. Since then, at least twenty-eight out of the fifty states now contain one or more municipalities with an eruv. Id.

B. Plaintiffs Seek to Establish an Eruv in the Municipalities

In 2010, EEEA members approached Verizon New York, Inc. ("Verizon") and Long Island Lighting Company d/b/a/ LIPA ("LIPA") and requested permission to affix lechis to utility and telephone poles owned by Verizon and LIPA in order to complete the eruv, which would encompass Westhampton Beach and parts of Southampton and Quogue. Id. ¶ 60. Verizon and LIPA agreed to grant permission. Id. In or about May 2010, EEEA and Verizon entered into an Eruv-Lechi Stave Agreement, which was fully executed on August 16, 2010. Id. Pursuant to this Agreement, Verizon agreed to allow EEEA to affix lechis to Verizon's poles to complete an eruv. Id. ¶ 61. On or about July 27, 2010, EEEA and LIPA entered into a License Agreement, whereby LIPA agreed to allow EEEA to affix lechis to LIPA's poles to complete an eruv. Id. ¶ 62.

After entering into these agreements with Verizon and LIPA, Plaintiffs decided to slightly expand the boundaries of the eruv, and subsequently determined through their rabbinical sources that the attachment of longer lechis than they had originally anticipated would be necessary. Id. ¶ 63. Verizon therefore required EEEA to enter into a new standard contract which required the longer lechis to be made of 5/8-inch wide PVC. Id. On or about June 13, 2011, EEEA and Verizon entered into an updated Pole Attachment Agreement For Miscellaneous Attachments in order to provide for the attachment of 5/8" half-round PVC lechis to Verizon's utility poles within the Municipalities. Id.²

C. Southampton's Alleged Interference with the Establishment of an Eruv

According to Plaintiffs, shortly after the execution of EEEA's agreements with Verizon and LIPA, officials in the Municipalities sought to actively interfere with EEEA's ability to construct the eruv. Id. ¶ 67. After the existence of EEEA's licensing agreements with Verizon and LIPA became known, a group called Jewish People Opposed to the Eruv ("JPOE") and other opponents of the Eruv allegedly lobbied Southampton Town officials to interfere with the performance and discharge of EEEA's agreements with LIPA and Verizon. Id. ¶ 68. On November 16, 2010, Southampton Attorney Michael C. Sordi wrote a letter to counsel for Verizon and LIPA, among others, advising of Southampton's position that the proposed Eruv would be "in contravention of our local laws." Id. ¶ 69. Citing Section 330-203(B) of the Code of the Town of Southampton prohibiting the placement of signs throughout the town, Attorney Sordi stated: "Base[d] upon the definitions of our sign law, and based upon the specification you provided to us with your letter, I am compelled to conclude that the lechis constitute a 'sign' within the meaning and intendment of our Statute. Accordingly, the same are prohibited." Id.³

Thereafter, Southampton officials communicated with governmental officials from neighboring Quogue and Westhampton Beach to develop a coordinated plan of opposition to theeruv, both in person and via email. Id. ¶ 73. In addition, Southampton instructed its police department not to permit the attachment of lechis, or to the extent the lechis were attached, to take them down. Id. ¶ 74.

D. The First EEEA Action

On January 13, 2011, the EEEA and certain individual plaintiffs filed a Complaint in East End Eruv, et al. v. Vill. of Westhampton Beach, et al., No. CV 11-213 (the "First EEEA Action"), asserting violations of their constitutional rights by Westhampton Beach, Quogue, the Town of Southampton, and a number of individual defendants, in allegedly preventing the establishment of an eruv.⁴ On April 4, 2011, Plaintiffs moved for a preliminary injunction seeking to enjoin defendants from taking actions which would prevent Plaintiffs from establishing an eruv in the Municipalities and from continuing to engage in discriminatory and unconstitutional conduct against Plaintiffs. First EEEA Action, DE 42. After conducting a hearing over the course of several days, Judge Wexler denied Plaintiffs' motion by Memorandum and Order dated November 3, 2011. East End Eruc Assoc., Inc. v. Vill. of Westhampton Beach, 828 F. Supp. 2d 526 (E.D.N.Y. 2011).

With regard to Plaintiffs' claims against Southampton, Judge Wexler held that Plaintiffs' claims were not ripe, finding that "whether the [Southampton] Sign Ordinance applies to the attachment of lechis to utility poles in Southampton should be an issue for Southampton to decide in the first instance." Id. at 537. Judge Wexler found that while the Town Attorney and Town Supervisor had already determined that lechis constitute signs within the meaning of the Sign Ordinance, those determinations were not "decisions of the 'Town' on the issue, becauseenforcement of the Sign Ordinance lies with Southampton's Building Department and ZBA." Id. Judge Wexler further explained:

It is uncontested that plaintiffs never instituted any request for a variance or interpretation of a Building Department determination. Mindful that land use disputes are uniquely matters of local concern more aptly suited for local resolution, the Court concludes that Southampton should be given the opportunity to determine whether lechis of the size

...