An eruv is a defined space that permits Jews with certain religious beliefs to push and carry objects within its bounds during the Sabbath and Yom Kippur. (Wiki)
In a fight over whether an eruv can be established in the Hamptons, a judge has ruled that franchise agreements stretching back to 1910 do not restrain Verizon and the Long Island Power Authority from attaching strips of wood or plastic to utility poles, creating symbolic boundaries for certain members of the Jewish faith.
“There is nothing in the franchises which expressly limits the utilities’ power to attach [the strips] or other items to their utility poles, or to ‘sublicense’ rights to their poles for any purpose,” Eastern District Magistrate Judge A. Kathleen Tomlinson (See Profile) ruled Monday in Verizon New York v. Village of Westhampton Beach, 11-cv-252. She added that provisions of certain state laws also adequately empowered the utilities to enter contracts for utility pole usage unrelated to electric and telephone services.
Tomlinson acknowledged municipalities can regulate utility-poles located in public streets pursuant to their “reasonable police powers.” But her 59-page ruling said the Village of Westhampton Beach lacked any ordinance barring the attachment or the strips —called lechis—to the polls.
Without any ordinance, Tomlinson said, “nothing prohibits LIPA or Verizon from entering into contracts to facilitate the attachment of lechis to their utility poles in Westhampton Beach.”
She said she did not have enough information to rule on the Village of Quogue’s code.
In a separate ruling released Monday, Tomlinson rebuffed a request from the Town of Southampton that she abstain from exercising supplemental jurisdiction to rule on the state law questions surrounding the utilities’ use of the poles.
Her rulings are one piece of a years long controversy that has spawned multiple lawsuits.
In 2010, the East End Eruv Association was formed to create an eruv in the area. An eruv is a defined space that permits Jews with certain religious beliefs to push and carry objects within its bounds during the Sabbath and Yom Kippur.
The proposed zone would span parts of the Village of Westhampton Beach, the Village of Quogue and the Town of Southampton. The eruv has not yet been put in place.
In January 2011, the eruv association sued Westhampton Beach, Quogue, Southampton and other defendants, claiming that they had violated the free exercise religion by preventing the eruv.
The municipalities denied that claim, arguing that permitting an eruv would run afoul of the First Amendment’s Establishment Clause.
The constitutional issues have not been determined. But the dispute has spawned state law questions related to the utilities’ abilities to attach lechis to poles.
In 2012, the Quogue Village Board of Trustees denied an application to put lechis on certain utility poles. In 2013, the Southampton Town Board of Zoning Appeals also denied a variance bid.
LIPA and Verizon sought a declaration that the utilities had the authority to enter into an agreement to allow lechis without exposure to fines, legal sanctions or creating any liability for the municipalities.
Westhampton Beach said the franchise agreements inherited by Verizon and LIPA forbade sublicenses—and even if they didn’t, any sublicenses had to be for public, not private purposes.
The utilities insisted municipalities could not tell a franchisee what it could do with its own property, being the utility poles in this case.
In her ruling, Tomlinson declined to read an “express prohibition” into the agreements. She pointed to licensing agreements that Westhampton Beach and Quogue entered with Verizon or its predecessor, New York Telephone Company. One 2008 agreement permitted Westhampton Beach to “place and maintain certain decorative attachments” on Verizon’s poles.
As a result, the village’s arguments were restricted in what they could agree to and were “belied by the fact that the municipalities themselves have entered into licensing agreements for purposes other than the provision of electricity, such as the attachment of banners.”
Tomlinson also concluded that the state Transportation Corporations Law and the Long Island Power Authority Act gave the utilities “sufficient authority” to enter private contracts unrelated to electric or telephone services.
She then turned to the question of local ordinances and village police powers.
Tomlinson found “numerous examples” of cases that discussed the validity of sign ordinances and regulation of pole attachments for aesthetic reasons, but none on whether an ordinance regulating lechi placement was a valid exercise of police power.
Westhampton Beach could not point to any ordinance on lechis and did not argue that its sign ordinance applied.
“Consequently, the court will not undertake an analysis of whether an ordinance regulating the attachment of lechis would be a valid exercise of Westhampton Beach’s police power where no such ordinance exists,” she said.
The judge observed that Quogue denied permission to place the lechis, but no parties addressed whether she could interpret the village code. As a result, she permitted further briefing.
The Village of Westhampton Beach was represented by Brian Sokoloff, a partner at Sokoloff Stern in Carle Place, and Leo Dorfman, an associate at the firm.
“We are in the process of digesting the ruling and conferring with our client,” Sokoloff said.
Jeltje deJong, a partner at Devitt Spellman Barrett in Smithtown, represented the Village of Quogue.
Maureen Liccione, a partner at Jaspan Schlesinger in Garden City and Robert Guido, of counsel, appeared for the Town of Southampton.
Ronald Tenpas, a partner at Morgan, Lewis & Bockius, and Jessica Zetwick, an associate, represented LIPA. Michele Pincus, associate general counsel at LIPA also appeared for the authority.
Michael Wiles, a partner at Debevoise & Plimpton, and Erica Weisgerber, an associate, represented Verizon.
The East End Eruv Association is represented by Robert Sugarman, senior counsel at Weil, Gotshal & Manges, and Yehudah Buchweitz, a partner at the firm.
Buchweitz said the ruling “knocks out one of the major defenses” from the municipalities that the utilities lacked authority. He called Tomlinson’s ruling “a great decision and a major step forward for the broader litigation.”