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East End Eruv Association, Inc. v. Town of Southampton

United States District Court, E.D. New York

September 24, 2014

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

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge.

The Jewish People for the Betterment of Westhampton Beach a/k/a Jewish People Opposed to the Eruv ("JPOE") previously filed a motion to intervene in this action. See JPOE Mot. [DE 11]. Plaintiffs East End Eruv Association ("EEEA"), Deborah Pollack, and Simcha Pollack (collectively, "Plaintiffs") opposed the motion. See DE 13. Defendants have not interposed any response to the instant motion. At the January 7, 2014 Status Conference, the Court DENIED the motion to intervene from the bench and stated that a written decision would be issued amplifying the reasons for doing so. This Memorandum sets forth those reasons

I. BACKGROUND

This litigation involves the question of whether "lechis" may be attached to utility poles to create an "eruv." An eruv, under Jewish law, is a largely invisible unbroken demarcation of an area. See Compl. [DE 1] ¶ 26. An eruv boundary is created by, among other things, using strips of wood or plastic, or lechis, attached to the sides of certain existing telephone or utility poles. Id. The designation of an eruv allows Jews with certain religious beliefs to carry or push objects from place to place within the boundary on the Sabbath and Yom Kippur. Id. 30.

Plaintiffs filed their Complaint in this action (the "EEEA II Action") on August 27, 2013. See generally Compl. Plaintiffs had previously filed a similar Complaint against the Town of Southampton, the Village of Westhampton Beach, and the Village of Quogue (collectively, the "Municipal Defendants") in East End Eruv, et al. v. Village of Westhampton Beach, et al., CV 11-213 (the "EEEA I Action"). On February 4, 2013, Judge Wexler dismissed that action against the Town of Southampton, with leave to renew, following certain applications to be made to Southampton. See EEEA I Action Feb. 4, 2013 Hr'g Tr. 9:19-24. The present action constitutes Plaintiffs' renewed application pursuant to Judge Wexler's directives.[1]

Plaintiffs maintain that the instant action was commenced in response to efforts by Defendant Town of Southampton (the "Town") to threaten and pressure Verizon New York, Inc. ("Verizon") and Long Island Lighting Co., d/b/a Long Island Power Authority ("LIPA") to renege on licensing agreements they entered into with Plaintiff EEEA in 2010, which require Verizon and LIPA to issue licenses to EEEA for the attachment of lechis to utility poles for the establishment of an eruv. See Pls.' Mem. of Law in Opp. to Mot. to Intervene ("Pls.' Opp.") [DE 13] at 5. The Town has declared that the lechis are signs and are therefore prohibited under local zoning regulations; the Town has also denied Plaintiffs' request for a variance for the lechis. See Compl. ¶ 145. Plaintiffs allege that Defendant Town of Southampton Zoning Board of Appeals (the "Zoning Board of Appeals") wrongfully denied Plaintiffs' appeal from the Town's rulings. Id. Plaintiffs request a declaration that (1) there is no basis for the Town's determination that local laws prohibit affixing lechis to utility poles or that municipal approval is required for such action; and (2) the private third parties should therefore be free and clear to implement the contracts to permit such action. Compl. ¶ 16. Plaintiffs also seek an order permanently enjoining the Town from taking actions that would prevent the Plaintiffs from establishing and maintaining the eruv, as well as an order compelling the Zoning Board of Appeals to issue any necessary approvals and permits to allow Plaintiffs to construct the eruv. Id.

Verizon and LIPA have also interposed a Complaint against the Town and other municipal defendants seeking declaratory and injunctive relief. See Verizon et al. v. Village of Westhampton Beach, et al., CV 11-252 (the "Verizon Action"). Verizon and LIPA contend that they (1) own the utility poles at issue; (2) are willing to allow the installation of the lechis to establish the eruv; and (3) entered into an agreement with EEEA to permit it to install lechis on the utility poles. Verizon Action Compl. ¶ 2. However, according to Verizon and LIPA, the municipalities have prohibited the attachment of the lechis, asserting that the attachment is either (i) not permitted; or (ii) requires prior approval pursuant to local laws which regulate the display of "signs" or that restrict intrusions on public rights of way. Id. ¶ 2. Verizon and LIPA sought a declaration that they may allow the installation of lechis on their utility poles without incurring any fines or other legal sanctions, and without any liability to the municipalities.[2] Id. ¶ 4.

JPOE filed motions to intervene in the EEEA I Action and the Verizon Action, however, Judge Wexler denied both of these motions. See Verizon Action, EEEA I Action, Electronic Order, Feb. 4, 2013; Verizon Action DE 96; EEEA I Action DE 196. JPOE appealed Judge Wexler's rulings to the Second Circuit. Verizon Action DE 101; EEEA I Action DE 203. On March 3, 2014, the Second Circuit affirmed Judge Wexler's rulings, noting among other things that JPOE had failed to show why the municipal defendants did not adequately represent any interest JPOE may have in the case. See Mandate of the United States Court of Appeals for the Second Circuit [DE 249].

On July 30, 2012, JPOE and two individual plaintiffs filed a separate lawsuit against EEEA, the Village of Westhampton Beach, Verizon, and LIPA (the "JPOE Action"). JPOE Action [DE 1]. Plaintiffs in the JPOE Action claim that the establishment of an eruv within the Village of Westhampton Beach would constitute a violation of the Establishment Clause. Id. JPOE's claims against Verizon, LIPA and EEEA were subsequently dismissed by Judge Wexler. See JPOE Action, Electronic Order, Feb. 4, 2013; DE 28. The JPOE Plaintiffs filed A Notice of Appeal on April 25, 2013. Id., DE 34. That appeal is still pending. JPOE's claims against the Village of Westhampton Beach remain and the case is now assigned for all purposes to United States Magistrate Judge Arlene Lindsay, although the proceedings are stayed pending the outcome of the appeal.

The parties in the Verizon Action, the EEEA I Action, and the EEEA II Action previously filed consents to the jurisdiction of a United States Magistrate Judge for all purposes. See Verizon Action DE 98; EEEA I Action DE 200; EEEA II Action DE 7. The pending matters were then transferred to this Court. See Verizon Action DE 100; EEEA I Action DE 202; EEEA II Action DE 15.

On October 11, 2013, JPOE filed the motion to intervene in the instant matter. See JPOE Mot. [DE 11]. Plaintiffs opposed the motion. See DE 13. Defendants did not interpose any response to the motion.

II. LEGAL STANDARD

With regard to intervention as of right, Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that

[u]pon timely application anyone shall be permitted to intervene in an action... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that ...

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