June 24, 2024
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Bergen-Rockland Eruv Negotiations Stall; Courts Take Over

The eruv that encompasses portions of Mahwah and Upper Saddle River is battered and bruised. The small portion that covers Mahwah, if it were not continually vandalized, is valid and allows approximately 60 families living in Airmont to carry items on Shabbat. The eruv has been operational for the past six weeks. The eruv lechis (markers) that were placed in Upper Saddle River are not part of a complete eruv at this time and do not benefit residents of Chestnut Ridge, which, like Airmont, lies just over the New York-New Jersey border. The planned eruv extension into Montvale has not yet moved forward.

On Friday, August 11, the Bergen Rockland Eruv Association, a new entity formed by the individuals associated with the South Monsey Eruv Fund for the purpose of this litigation, filed a complaint in the United States District Court of New Jersey against the Township of Mahwah. The court documents fault the township for “intentional deprivation of plaintiffs’ rights and liberties under the First and Fourteenth Amendments to the United States Constitution and multiple federal statutes (freedom to practice religion).” The previous week, the Township of Upper Saddle River was sued as well; an emergency injunction was put in place to repair what had been vandalized but to freeze all other activity. Upper Saddle River has retained the counsel of Bruce Rosen, who represented Tenafly in its eruv fight 15 years ago.

Andrea Jaffe, a volunteer communications coordinator representing the Bergen Rockland Eruv Association, told The Jewish Link that the tiny sliver of the town of Mahwah that is covered under the eruv constitutes a very small portion of the town, covering less than one mile of Mahwah’s 26.191 square miles. “We feel strongly that there should be a reevaluation on the part of the Mahwah Township. This eruv was planned to help people in Airmont and it does not affect anyone in Mahwah at all,” Jaffe said.

Jaffe explained that the eruv extension from New York into New Jersey was paid for by individuals in Airmont and Chestnut Ridge who live marginally outside the current Monsey eruv. “The Mahwah loop was the most efficient logistical option and essentially just reaches the next set of utility poles in a residential area that has a lot of dead ends. It’s a very small area. Poles are the most efficient way to construct an eruv because they are maintained by the utility company,” she explained.

Jaffe explained that the utility company has authority regarding the poles, and they contract with many vendors for pole usage. “The installation was coordinated by the Mahwah Police Department and put up in the manner all parties required,” she said.

At the Mahwah city council meeting last Thursday evening, Mayor Bill Laforet discussed his attempt to defuse tension and lower the temperature in the heated eruv controversy by proposing a two-week moratorium on all action, while proposing a meeting with council members and the eruv association. However, the council ignored his attempt and instead voted unanimously to allow its zoning officer to begin issuing summonses to remove the lechis, to enforce the violation of the town code preventing signs being affixed to utility poles.

Jaffe explained that, from her perspective, the eruv association, their lawyers, as well as representatives of the Facebook group Mahwah Strong and members of the town council, had been invited by the mayor to join together on August 15, and she noted the association had agreed to hold all litigation and attend in good faith. However, the council’s action to begin issuing summonses canceled out the eruv association’s hold, and their lawyers moved to sue.

When reached for comment on Monday, Mahwah council president Rob Hermansen said counsel retained by the township had advised him to refrain from speaking to the media, but he directed The Jewish Link to various Facebook pages that state that the eruv association did not seek the appropriate permissions to place the eruv in Mahwah. He also stated that the township has not yet retained counsel to address this lawsuit.

“I don’t know on what basis Mr. Hermansen is saying this was not a legal installation,” said Jaffe. “Permission was granted by the utility company and the installation was coordinated with the police department providing support and traffic safety. There was no other form to fill out or any process that was not pursued,” she said. Taking another perspective, Jaffe said, “Say, for example, I wanted to put up a shed in Mahwah. I would apply to the town and fill out the paperwork and zoning or variance requests. I would not ask Mr. Hermansen for permission directly to put up the shed. All steps publicly disclosed to the eruv association were followed,” she added.

In response to the criticism that the town was not notified about the eruv, Yehuda Buchweitz, an attorney with Weil, Gotshal and Manges, LLP, who is representing the eruv association pro bono, confirmed Jaffe’s statement that the construction of the eruv was done to the letter of the law. “They got valid written agreements, the police were present, they had flagmen and insurance; all you need.”

After last week’s council meeting, a half dozen of the lechis in Mahwah were vandalized. Mahwah’s police chief said the damage was discovered on Saturday. It appeared that the lechis were hit with “some type of blunt object” that splintered the pipe and left a small section missing. He said the perpetrator(s), when found, will be charged under state hate crimes statutes.

Buchweitz said that in neighboring Upper Saddle River, the first town to ask for removal of the eruv, there is an interim agreement not to take down the eruv. When that part of the eruv was vandalized, the eruv association’s attorneys filed a complaint for a temporary restraining order to repair and keep the eruv up. The town agreed to allow the damaged lechis to be fixed and not take further action. They agreed to give a week’s notice if the town decides to change course. Rosen, who was a guest at Upper Saddle River’s council meeting a week ago, said his team would explore options for legally challenging the eruv. He told the assembled that this will be an uphill fight, and they will probably lose.

Buchweitz said he doesn’t know why there is so much resistance to the eruv. He said the purpose of the eruv was not to expand the geographical boundary to encourage observant Jews to move in; it’s for the people who are already there who want it, in this case hundreds of people in Chestnut Ridge and Airmont. He said the eruv has to follow certain boundaries and that’s why it is dipping into Mahwah, Upper Saddle River and Montvale. “You can’t draw a line on the New York border. In order to enclose the New York side, you need a little bit of New Jersey. In some places, it’s only 50 feet; in some it’s six streets.”

Jewish advocacy organizations are getting involved in the case in varying degrees. Agudath Israel (also known as “the Agudah”), represents Orthodox Jews in individual and communal religious freedom cases, including eruvin, with a legal team of staff attorneys and pro-bono lawyers. Agudah writes amicus briefs, meets with elected officials, speaks to the media and lobbies for laws that protect religious freedom. In an email interview, Rabbi Avi Shafran, who serves as Agudath Israel’s public affairs director, said the Agudah is particularly concerned about situations where Jews and Judaism are targeted. “When there is an odor of anti-Semitism in such challenges, we are particularly determined to assist the targets of ill will in any way we can.”

Rabbi Avi Schnall, the director of the New Jersey office of Agudath Israel, who wrote an amicus brief in the Tenafly eruv battle, said in a phone interview that he has reached out to the mayors of Mahwah and Upper Saddle River to “stand up to what’s right and not hate.

“We don’t want to cause hardship for the town. But if they look at other towns they’ll see this [an eruv battle] doesn’t end well. It will cost them hundreds of thousands of dollars. We hope there is some way of working this out,” said Rabbi Schnall. The legality of eruvin has already been decided by the courts, he noted. Furthermore, the town’s position that lechis are signs that legally cannot be affixed to utility poles is also invalid. “Lechis are not signs; they are more like services such as utility poles,” he said.

“It is very troubling that the real motivation behind the controversy is that townspeople don’t want observant Jews moving in,” he said. “The eruv was up for weeks, possibly months, unnoticed until a few people started to make noise and stoke fears of an Orthodox takeover of the town. It is so not true and hurtful.”

“This eruv was built in coordination with the town,” Rabbi Schnall emphasized. “The utility gave them permission and the police were present when the eruv was installed. For the mayor to wake up months afterward and say ‘take it down’ is very suspicious. What changed? The Mahwah Strong Facebook page was created, filled with hate. The eruv association did everything according to the law and no one objected. It was only after hateful opposition that the mayor said ‘take it down.’”

Joshua Cohen, New Jersey director of the Anti-Defamation League, published a statement on its website condemning the hate and said that he wrote to the mayors of Mahwah and Upper Saddle River, urging them to rescind the decision to remove the eruv.

Jason Shames, CEO of the Jewish Federation of Northern New Jersey, is getting up to speed on the situation after being out of town for two weeks. He said the Federation isn’t taking a specific position, and can’t get involved in the litigation, but strongly condemns the comments that have been made against the eruv. “The hate speech and rhetoric have to stop,” he said. “It’s not helpful and is not going to advance any position. It’s hard in a heated environment to come to a resolution everyone can live with.” Shames is hopeful that in the coming days the Federation can build on relationships it has with elected officials, law enforcement and local rabbis to work behind the scenes to move conversations in a more positive direction.

Buchweitz said that eruvin have brought people together instead of dividing them. “In virtually every community where an eruv exists, it is a symbol of diversity, done cooperatively with local officials. In Los Angeles, when there was highway construction and the eruv was down, the city helped put it back up. When I argued the case in Westhampton, I told the host of a TV interview who lives in Princeton that there was an eruv there; he didn’t even know.”

David Yolkut, another Weil Gotshal attorney working on the case, said that in Tenafly, people who led the protest against the eruv look back in shame. “It was much ado about nothing,” he said. “All that happened was the town spent hundreds of thousands of dollars in legal fees. The eruv is important to people who want it and irrelevant to people who don’t.”

Discussions about the eruv in Mahwah have become co-mingled with an entirely unrelated issue: the use of parks by large groups of non-residents so that residents feel pushed out. Rabbi Schnall says he understands that and advises people to be sensitive to those feelings when they visit public parks. But it’s a completely different issue than an eruv. “The eruv doesn’t obstruct anything from anybody,” he said.

Rabbi Shafran said that even though observant Jews often want to keep distant from some aspects of secular culture, we should interact with our neighbors and the public. “Kavod habriyot (honor for others) is a Jewish imperative. The example we should all follow is that of Rabbi Yochanan ben Zakkai, about whom the Talmud (Brachot 17a) testifies, ‘no one ever beat him to a greeting,’ as he was always the first to offer one, ‘even [to] a non-Jew in the marketplace.’” Or maybe, in the park.

 By Bracha Schwartz

 

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