In the recent decision of Verizon New York v. Village of Westhampton Beach, et al., Magistrate Judge A. Kathleen Tomlinson ruled in favor of Verizon and the Long Island Power Authority (“LIPA”) and declined to “read in” a provision into franchise agreements that would bar the utilities from allowing the attachment of wooden or plastic strips known as “lechis” to their poles.  This case arose in 2010, when the East End Eruv Association (“EEEA”) was formed and submitted applications to the Village of Westhampton Beach, Village of Quogue and Town of Southampton in order to establish an “eruv,” which is a delineated area that symbolically extends the private domain of Jewish households into public areas, permitting activities within it that are normally forbidden in public during the Sabbath and on holy days.

The applications were denied, and in January 2011, EEEA filed suit arguing that their right to free exercise of religion had been violated by preventing the establishment of the eruv. The municipalities countered with the argument that permitting the eruv on public property would be violative of the First Amendment’s Establishment Clause.  These constitutional claims are currently pending and have not yet been decided.

On January 15, 2013, Verizon and LIPA filed an action seeking declaratory and injunctive relief 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 Defendants.”

With respect to Verizon, the municipalities had urged the Court to adopt their position that Verizon “may only use its poles for telephone purposes and that the use of the poles for purposes other than that for which [Verizon] was granted a special franchise under section 27 of the Transportation Corporations Law is beyond its powers.” The Court, however, flatly rejected this argument stating that “[t]his narrow construction of the statute granting the special franchise is not supported by the statute’s language” and that “[Verizon’s] certificate of incorporation contains a grant of power to use its equipment for purposes other than providing telephonic communication.”

Moreover, the Court noted that because Verizon is subject to the Business Corporations Law it “possesses the right to enter into contractual arrangements with others for the use of space on its poles pursuant to the powers granted in subdivision (a) of section 202 of the Business Corporation Law.”  In fact, the Court found that the Villages of Westhampton Beach and Quogue had both previously entered into licensing agreements with Verizon and its predecessor-in-interest, New York Telephone Company, for the attachment of banners, which is a non-utility purpose.

As to LIPA, the Court found that pursuant to New York Public Authority Law § 1020-g(c), LIPA has the “discretion to ‘use’ or ‘lease’ its poles as it sees fit.”  The Court dismissed Quogue’s contention that as a public authority created by statute, LIPA’s powers are limited to providing safe, adequate and economical electric services within its service area and, therefore, it lacks the authority to enter into contracts to attach lechis to its utility poles.

The Court similarly found, as it did with Verizon, that LIPA has entered into numerous agreements relating to the use of its poles, including one with Westhampton Beach to allow it to advertise its St. Patrick’s Day Parade.

Judge Tomlinson did, however, recognize the municipalities’ jurisdiction to regulate utility poles situated in public streets and right-of-ways pursuant to their “reasonable police powers” and rebuffed the utilities’ assertion that their rights and powers with respect to the utility poles derive from state law, and not local legislation.

Nonetheless, because Westhampton Beach had failed to identify any ordinance that prohibits the attachment of lechis, the Court refused to undertake an analysis of whether an ordinance regulating the attachment of lechis would be a valid exercise of Westhampton Beach’s police power.  Thus, the Court ruled that Verizon and LIPA are authorized to allow EEEA to place lechis on their utility poles in Westhampton Beach.

With respect to the Village of Quogue, the Court noted that its code prohibits encroachments or projections “upon, into or over any public road or street in the Village of Quogue…” and that this prohibition appears to be a valid exercise of the Village’s police powers.  While neither utility disputed the validity of the ordinance, they did dispute the applicability of the ordinance to lechis.  The Court concluded that it did not have enough information to rule on whether Quogue’s Village Code regulates the attachment of lechis to utility poles and permitted the parties to further brief the issue.

Since the action was stayed as to Southampton, the Court’s ruling pertains only to Westhampton Beach and Quogue.

While this decision has dealt a significant blow to the opponents of the proposed eruv, the municipalities may still prevail if the Court ultimately determines that the erection of the eruv on public property violates the Establishment Clause of the Constitution, which provides for the separation of church and state.