East End Eruv Association, Inc. (“EEEA”) is a non-profit corporation formed to coordinate efforts toward promoting the construction of an eruv. The eruv was set to travel through three municipalities: Southampton, Westhampton Beach, and Quogue, New York. An eruv is an unbroken demarcation or delineation of an area that is established by the attachment of wooden or plastic strips, called “lechis,” to utility poles. To construct an eruv in Southampton, the EEEA entered into a licensing agreement with the owners of the needed poles. In 2010, the Town of Southampton advised the owners of the utility poles that attachment of the lechis violated a local sign ordinance, and that issuing such licenses would result in fines and penalties. As a result, the owners of the utility poles refused to issue licenses for lechis. Jewish law prohibits the carrying or pushing of objects from a private domain, such as a home, to the public domain on the Sabbath or Yom Kippur. Based on the religious beliefs of observant Jews, without an eruv, they are unable to leave their homes on these days if they are carrying objects such as a baby, prayer book, keys, or pushing objects such as a carriage or wheelchair. Consequently, in January 2014, the EEEA commenced an action in federal court, asserting violations of the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and requesting that no local, state, or federal law prohibit the construction of an eruv in Southampton.
In early 2012, the EEEA submitted a letter to Southampton’s Chief Building Inspector (“Inspector) requesting an interpretation of the sign ordinance. On April 27 of that year, the Inspector responded that a lechi is considered a sign under the sign ordinance as it displays a message that observant Jews may “carry and push” objects within its bounds. The Inspector also found that, even if an eruv is not viewed as conveying a message, a lechi is considered an “outline,” “delineation,” and an “emblem” as to qualify as a sign under the ordinance. On September 14, the EEEA submitted an application to the Inspector for 28 sign permits to attach lechis to 15 utility poles. The applications for sign permits were denied. The Inspector explained that the Town Code prohibits the placement of a sign on a telephone pole, and that the EEEA should obtain a use variance from the Zoning Board of Appeals (“ZBA”) to install the lechis.
On April 4, 2013, the ZBA held a public hearing to address whether lechis are signs under the Town Ordinance, whether the lechis should be treated as exempt or unregulated signs, or, alternatively, whether the EEEA should be granted an area or use variance. Testimony offered in favor of the eruv opined that a lechi is not a sign. Notably, testimony from a real estate expert revealed that the expert lived in an area where an eruv is constructed and, until consulted on the case, he was not aware of it. Others also testified that lechis and an eruv were invisible to the community and that even the observant Jewish community is not aware which poles have lechis. On August 1, 2013, the ZBA rendered its decision finding that the EEEA had failed to demonstrate the necessary hardship required to permit the issuance of a use variance. The ZBA further held that lechis constitute illegal signs under the sign ordinance, and that any accommodation of the EEEA’s application for religious purposes would have an overall adverse impact on the public welfare. The EEEA thus renewed its action in the district court alleging that the town and the ZBA have unlawfully prevented the establishment of an eruv.
Chapter 330, Article XXII of the Southampton Town Code governs signs, which are defined in Section 330-201 as:
Any material, device or structure displaying, or intending to display, one or more messages visually and used for the purpose of bringing such messages to the attention of the public, but excluding any lawful display of merchandise. The term “sign” shall also mean and include any display of one or more of the following:
- Any letter, numeral, figure, emblem, picture, outline, character, spectacle, delineation, announcement, trademark, or logo; and
- Colored bands, stripes, outlines or delineations displayed for the purpose of commercial identification.
The Inspector stated that a lechi and the eruv convey an idea or theme insofar as they communicate that pushing and carrying is permitted because the eruv symbolizes an extension of the home and lechis symbolize doorways. The Inspector’s analysis concluded that even if an eruv could be viewed as not conveying a message, a lechi is an outline and delineation, and because an eruv is classified as a “demarcation” it must also be classified as a “delineation.” Further, the Inspector stated that a lechi qualifies as an emblem, as an emblem is something that is used to symbolize something else, and lechis symbolize the doors constituting the limits of the eruv.
However, notably absent from the Inspector’s analysis was the definition of “display.” A display is defined as “a setting or presentation of something in open view . . . a clear sign or evidence.” Thus, the court held that the uncontroverted testimony before the ZBA that lechis are not discernible to the community establishes that lechis do not display a message or delineation and, thus, do not come within the scope of the sign ordinance. Moreover, in Tenafly Eruv Association, Inc. v. Borough of Tenafly, the Third Circuit held that an eruv constructed with lechis simply demarcates a space within which certain activities otherwise forbidden on the Sabbath are allowed.[1] As such, the Third Circuit concluded that the mere placement of an eruv and the lechis did not communicate an idea or message, as their placement on poles was virtually invisible. Further, in ACLU of NY v. City of Long Branch, it was found that an eruv is not a religious symbol and that neither the boundary markers, the utility poles, fencing and half-rounds on the sides of the existing poles, not the eruv itself have any religious significance.[2] Rather, the court concluded that an eruv merely allows observant Jews to engage in secular activities on the Sabbath and does not impose any religion on other residents.
It is well settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use and every effort to accommodate the religious use must be made. Thus, when a variance is denied, the zoning board has “an affirmative duty . . . to suggest measures to accommodate the planned religious use, without causing the religious institution to incur excessive additional costs, while mitigating the detrimental effects to the health, safety, and welfare of the surrounding community.”[3] Because the ZBA made no effort to suggest such measures, their actions were improper and constituted an abuse of discretion.
[1] 309 F.3d 144 (3d Cir. 2002).
[2] 670 F.Supp. 1293 (1987).
[3] Islamic Society of Westchester & Rockland Inc. v. Foley, 96 A.D.2d 536, 537 (2d. Dept. 1983).
