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For the past 5-plus years, East End Eruv Association (“EEEA”) has been involved in federal litigation seeking approval to construct an eruv in accordance with its religious beliefs (East End Eruv Association v. Westhampton Village, Village of Quogue, Town of Southampton, et al., complaint available here) (referenced here as the “main case”). According to EEEA, an eruv is “a largely invisible unbroken demarcation of an area.” Within an eruv, Jewish residents may push or carry objects in the public domain on Sabbath and Yom Kippur, which they would be unable to do without an eruv. EEEA wants to construct the eruv on existing utility poles and attach lechis, wooden strips no larger than 1”x4”x40,” which would form the boundary of the eruv through three towns within the Hamptons.

In 2013, EEEA filed a similar suit against the Town of Southampton to construct an eruv (the “Southampton case”), after the court in the main case ordered EEEA to engage in the administrative approval process in Southampton in order to exhaust its administrative remedies (complaint available here). In the Southampton case, EEEA claims that instead of facilitating approval of the eruv, “the Town’s representatives initiated a cycle of delay and misinformation that prevented EEEA from obtaining a final decision from the ZBA for more than a year and a half.”

Each case has a long and complicated procedural history, but in short, EEEA claims that it does not need local approve to construct the eruv because it entered private license agreements with owners of the utility poles necessary to erect the lechis. EEEA also claims that the defendants interfered with the agreements by informing the pole owners that municipal approval was required prior to construction. The main case complaint alleges that such action violates the First Amendment, RLUIPA, § 1983, and § 1984, and has caused a tortious interference with EEEA’s license agreements.

After EEEA sought approval in Southampton, it filed a state-court appeal of Southampton’s determination that the lechis were subject to Southampton’s Sign Ordinance. EEEA also challenged the municipality’s denial of a use variance to erect the lechis. The state court found in favor of EEEA, ruling that application of the Sign Ordinance was arbitrary. (state court decision is available here.) EEEA reported the decision in a letter to Judge Tomlinson in the Southampton case, and requested that the court lift the current stay in that federal action. EEEA summarized the state court decision as:

Judge Farnetti held that Southampton’s Chief Building Inspector’s interpretation that lechis are signs “is contrary to the language of the law, irrational and unreasonable in that it does not comport with the Sign Ordinance’s intent.” He further found that:

[T]he boundaries are invisible as the lechis are not discernable. Therefore, unpersuasive is any argument that the lechis are on poles in the public right-of way. Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.

Assuming, arguendo, that the Sign Ordinance applied, the state court also concluded that it was erroneous for the ZBA to deny EEEA’s request for a variance. Although the court recognized that religious uses are not exempt from zoning, it also noted that a municipality is obligated to “make every effort to accommodate” a religious use. Since the ZBA failed to make any effort to accommodate or even to suggest accommodations to EEEA, its denial was deemed an abuse of discretion.

In its letter, EEEA also argues that the state court decision “should also be considered in connection with the parties’ pending submissions on whether the Quogue Village Code applies to lechis,” in the main case. According to EEEA, the decision “compels the conclusion that the lechis do not constitute ‘devices’ or ‘encroachments’ in a public right of way under a rational and reasonable interpretation of the Quogue Village Code.” The City of Quogue’s response to EEEA’s request is available here.

RLUIPA Defense will continue to monitor these federal dockets closely.

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.