What is the purpose of the Rockland County eruv?
Jewish law prohibits pushing baby carriages and carrying items, such as prayer books or shawls, outside of the home on the Sabbath and holidays such as Yom Kippur. An eruv allows Orthodox Jews to push baby carriages and carry items outside of their homes without violation of their beliefs by creating a series of symbolic “doorways” around a specific area, using existing utility wires and plastic strips or tubing called “lechis,” or even some natural formations. This creates a symbolic extension of one’s home within which such activities are allowed. The Rockland County eruv is actually a series of interconnected eruvin (plural of eruv) designed to allow all observant Rockland residents to walk to and from synagogue and elsewhere on holy days carrying/pushing/pulling items that they would otherwise not be able to carry, push, or pull.
If the eruv is for Rockland County residents, why does it need to go through Upper Saddle River?
The series of eruvin that connect Mahwah to Montvale are essentially the southern boundary of the Rockland eruvin. The Eruv Plaintiffs (those who sued all three towns to secure their ability to establish the eruvin) are members of various synagogues in Monsey and elsewhere in Rockland County. All of the Eruv Plaintiffs live in New York, some just a few feet from the New York/New Jersey border. The Eruv Plaintiffs claim that, for a number of reasons (relating to the availability of utility poles and natural formations), it is not possible to construct a border to the eruv that lies entirely in New York. The streets originally selected to construct the eruvin by these Plaintiffs are the first available relatively straight East-West and North-South thoroughfares south of the New York border, making them the easiest route to construct. Representatives of the Eruv Plaintiffs have recently told our lawyers that they plan to continue to develop their communities within Rockland County.
Who exactly is suing Upper Saddle River and what do they want?
A group of residents who live in Rockland County within the Mahwah Eruv, initially sued USR and Mahwah to prevent these municipalities from dismantling an eruv they had established. These Plaintiffs believe they do not need municipal approval to place the lechis on poles — that all they need is a license from the utility companies, which has been routinely granted. The Borough’s position has been that any attachments must be subject to its Ordinances, which require municipal approval before any matter may be attached to utility poles. Later, a second group of plaintiffs and an “eruv association” joined the lawsuit, seeking to force USR to allow them to complete a second eruv that begins on West Saddle River Road and runs to Montvale across Old Stone Church and Weiss Roads. These complaints were filed under federal civil rights laws, which carry with them the possibility of an award of legal fees to successful plaintiffs in addition to the Borough paying its own legal fees.
Why did USR oppose the eruv?
USR has a long history of keeping its poles clear of signs and other postings, other than utility-related materials. In opposing Plaintiffs’ claims, the Borough was following through with its historical efforts to keep its poles clear, an aggressive defense of its ordinance prohibiting posting signs and other materials on utility poles, and reacting to constituents’ similar comments in this regard.
Why doesn’t USR stick to its guns and continue to fight this lawsuit?
Court decisions in cases brought by eruv proponents in the past have made it difficult to pursue actions to prohibit eruvin. For example, the Long Branch case determined that eruvin are constitutional and the Tenafly case essentially ruled that if anyone uses utility poles for secular purposes, religious purposes cannot be prohibited.
USR vigorously opposed Plaintiffs’ attempt to obtain an injunction to prohibit USR from removing already-installed lechis but also moved to dismiss the Amended Complaint. USR’s motion papers included extensive legal arguments, supported by numerous affidavits from municipal officials and even a Verizon lawyer. . The submission by USR was among the most comprehensive legal and factual arguments ever made against establishment of an eruv in violation of a municipal ordinance. However, in January, Judge John Michael Vasquez of the U.S. District Court in Newark, who was also assigned the cases involving Mahwah and Montvale, strongly recommended that the parties to this matter settle.
During what was supposed to be oral argument on the motions, the Court issued a tentative and preliminary opinion on the merits of the case, focusing on Plaintiff’s application for an injunction against the Borough stopping completion of the eruv. In making that analysis, the Court focused on whether plaintiffs had a “probability of success on the merits” and strongly suggested that plaintiffs might succeed in arguing that the Borough’s 2015 sign ordinance was enacted with discriminatory intent to specifically prohibit eruvin. In sworn statements submitted to the Court, municipal officials had denied any such discriminatory intent and continue to deny it. The judge agreed to consider whether to allow supplemental testimony from these officials before it made a final determination; however, he again emphasized his recommendation that the parties settle.
Even had the judge made an adverse ruling, ordering a preliminary injunction, the Borough would still be entitled to take the matter to trial. However, during that same proceeding, in a private meeting with the judge and counsel, the Plaintiffs’ attorneys offered to forego most of the attorneys’ fees that they would claim as a prevailing party (at the time more than $900,000) if USR would settle without further litigation. In addition, the Court and USR’s attorneys were told about Plaintiffs’ proposed settlements with Mahwah and Montvale, which made success in our litigation even more problematic. (USR is quite literally in the middle).
If USR continues to fight, the case would have to go to trial, and, because the judge revealed at least preliminary predilections adverse to USR, it could risk incurring hundreds of thousands of dollars in its own additional legal fees, plus the possibility of upwards of $2 million or more worth of Plaintiffs’ legal fees. This does not include the cost of a potential appeal.
What does the settlement provide?
USR’s lawyers, working with a committee of the Borough Council, have agreed on a tentative settlement. The Borough Council must approve this settlement for it to be final.
The proposed settlement substantially reduces the size of the eruv originally prosed in Plaintiffs’ lawsuit. The original eruvin in USR designed by Plaintiffs essentially ran from the Mahwah border across Sparrowbush Road to Old Stone Church to Weiss Roads, cutting a line across the northernmost portion of the Borough containing almost 20% of the Borough, or about 640 acres and about 557 homes. Unlike the settlements in Mahwah and Montvale, the USR eruv route would change substantially. The USR settlement calls for a new eruv route that cuts as close to the New York border as possible from West Saddle River Road to near the Montvale border, cutting the amount of land within the USR eruv by more than 60% and the amount of acres to 253 and homes to 230. Below you will find a map depicting the difference between the old and new routes. Every USR home still within the proposed new eruv route would have been part of the original route proposed by Plaintiffs.
Mahwah and Montvale’s agreements allow the Plaintiffs to come back and renegotiate their routes two years from execution (i.e., February 2020). In USR, Plaintiffs can seek to renegotiate their route three years from completion of the new eruv route, or approximately summer 2021. For a variety of reasons, we do not expect this issue to reemerge in the short term in 2021.
All of the lechis under the USR tentative agreement would be converted from white PVC pipe with aluminum strapping to less visible black plastic installed with nails or screws. In USR, Plaintiffs must change the lechis within 120 days from the date the settlement is signed. In contrast, Mahwah has granted Plaintiffs a year to paint existing lechis brown or black. Paint could, of course, chip and fade, necessitating regulate maintenance. Montvale has a similar provision to Mahwah; however, its agreement is silent on how long Plaintiffs have to paint those lechis.
In USR, the eruv association would be permitted to install about 10 poles, roughly the thickness of a flagpole and approximately 18 feet high, within the municipal right of way to allow for the alternate route. This agreement does not provide legal access to property not owned by USR, other than rights of way and/or easements granted to USR.
The Borough will pay $75,000 worth of legal fees to settle Plaintiffs’ claim. While it is more than Mahwah or Montvale paid, we are the only one of the three defendant municipalities to engage in active litigation with Plaintiffs and we are getting far more in terms of settlement value.
If the route has changed, then why do I still see work being performed elsewhere in USR?
Not unexpectedly, it will take several weeks to complete the new eruv route. Recently, while settlement discussions were progressing and in order to avoid returning to a litigation mode, Plaintiffs were granted permission to complete its temporary eruv from the Mahwah border across Sparrowbush Road to Old Stone Church to Weiss Roads. This temporary eruv allows observant Rockland residents to walk to and from Rockland synagogues and elsewhere on holy days carrying/pushing/pulling items. The proposed settlement requires Plaintiffs to complete the new eruv route within 60 days from the date the settlement agreement is signed. After the new eruv has been completed, Plaintiffs must take down the temporary eruv, at their own expense, within 45 days.
Why do I see bucket trucks working on poles around the eruv route?
For an eruv to be used, the boundary created must be unbroken and lechis must be straight up/down utility poles. If the eruv has been invalidated, then it must be repaired before the Sabbath or certain holy days; otherwise, the eruv cannot be used by Orthodox Jews. For inspections, restoration, maintenance, checking, repair, or replacement of lechis or other eruv components to occur, there may occasionally be someone working to fix “breaks” in the eruvin. Plaintiffs do not have authority to violate federal, state, and local laws and regulations. Accordingly, the USR settlement agreement requires Plaintiffs notify the Borough Police Department before any installation, maintenance, or repair of the eruv, identifying the location of the pole(s) on which such installation, maintenance, repair, and/or expansion work shall be conducted. Further, Plaintiffs must employ a flagman during such work and abide by all traffic safety rules.
If residents observe what appears to be suspicious activity, traffic obstruction, and/or illegally parked vehicles, whether or not it involves eruv installers or repair people, you can contact the USR Police Department but residents should not engage in acts of self-help.
How will the eruv impact me?
Largely, the eruv will have no impact on residents’ day-to-day lives. You probably will not notice that, once a week, someone will drive or walk along the eruv route to make sure it is unbroken. These inspections are permitted and necessary to ensure there is no break in the eruv that would prohibit observant Rockland residents from walking to and from Rockland synagogues and elsewhere on holy days carrying/pushing/pulling items. If the eruv is damaged or invalidated, repairs may need to be performed. Again, Plaintiffs must notify the Borough Police Department before any installation, maintenance, or repair of the eruv and, like everyone else, must abide by all traffic safety rules.
What will having an eruv in USR cost the Borough?
Nothing. Plaintiffs are required by law to inspect, install, maintain, and/or repair the eruv at their own cost.
Will Plaintiffs’ be insured for the work they are doing?
Yes. Prior to commencing any work within USR, Plaintiffs (and any contractor or agent engaged or hired by them) must furnish a certificate of insurance to USR evidencing liability insurance for at least $1,000,000.00 per occurrence and $2,000,000.00 aggregate and listing USR, its officials, and employees as additional insured.
Can Plaintiffs change the eruv route?
The USR settlement agreement prohibits Plaintiffs from renegotiating the route for three years from completion of the new eruv route, or approximately summer 2021. Again, for a variety of reasons, we do not expect this issue to reemerge in the short term after the three year period is complete.
What if utilities are moved underground?
The USR settlement agreement does not prevent the Borough from moving utility wires underground. If the removal or replacement of utility poles results in the eruv no longer being valid, then USR has agreed to work in good faith with Plaintiffs to find a reasonable and practicable solution for reestablishing a valid eruv.
What if Plaintiffs no longer use or plan to use the eruv in USR?
If Plaintiffs abandon the eruv, then Plaintiffs are responsible for removing all lechis and other eruv components at their own expense.
So, were Plaintiffs right? Is USR admitting that it violated the law?
USR continues to believe in the legal arguments it made during this litigation. Settlement of this lawsuit is a business decision. Constitutional claims, such as the one made by Plaintiffs, allow for a prevailing plaintiff to recover his/her/its attorneys’ fees and costs. Here, at the time of settlement, Plaintiffs represented they incurred more than $900,000.00 (now, considerably higher) in legal fees and costs. In considering USR’s costs of litigation, the risks associated with proceeding with discovery and trial, the potential for being responsible from paying for Plaintiffs’ legal costs, the difficulties created by settlements with Mahwah and Montvale and the extremely bad publicity coming from incidents in Mahwah, the Borough Council will be voting on whether it is in the best interests of the Borough and its residents to settle this matter. The USR settlement agreement makes no admission of liability, nor any representation that Plaintiffs were right.
What do residents have to fear from this eruv?
Nothing. It goes without saying that anyone may walk or drive through USR at any time or buy or rent a home in USR. The Borough attempted to defend its Ordinances vigorously but never intended to act, or acted discriminatorily toward any group.
This map represents the original route sought in Plaintiff’s lawsuit, where the land area lying within the eruv represented almost 20% of USR’s properties, or almost 640 acres.
This is the route of the proposed settlement, which runs as close to the NY/NJ border as could be negotiated. It represents a 60% reduction in the amount of USR land area involved in the eruv, containing some 253 acres or 7.5% of the Borough.