Smith v. Community Bd. No. 14

• Decision Date: 08 July 1985
• Citation: 491 N.Y.S.2d 584,128 Misc.2d 944
• Parties: Joseph M. SMITH, etc., et al. v. COMMUNITY BOARD NO. 14, et al.
• Court: New York Supreme Court

Page 584

491 N.Y.S.2d 584

128 Misc.2d 944

Joseph M. SMITH, etc., et al. v. COMMUNITY BOARD NO. 14, et al.

Supreme Court, Special Term Queens County, Part 1.

July 8, 1985.

Ira I. Van Leer, New York City, for plaintiffs.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Virginia Waters, New York City, of counsel), for defendants.

AARON F. GOLDSTEIN, Justice.

In this action for a permanent injunction, plaintiffs move to restrain defendants from further construction, maintenance and use of an eruv on the grounds that plaintiffs' rights have been violated under the Establishment Clause of the First Amendment of the Constitution of the United States, made applicable to the states by the Due Process Clause of the Fourteenth Amendment; Article 1, section 3, of the New York State Constitution, and section 383-1.0 of the New York City Charter and Administrative Code. Plaintiffs further allege that defendant Community Board No. 14 improperly granted permission for defendant Community Eruv of Belle Harbor (hereinafter "eruv committee") to construct the eruv. Defendants cross-move to dismiss the complai for failure to state a cause of action and for summary judgment.

An eruv, under Jewish Law, is an unbroken physical delineation of an area. In tangible terms, it is created from natural barriers or from wires strung across poles. Among other things, an eruv must be built on land owned by the public, it may not have a ceiling, it must be at least forty inches high, and must be accessible to the public twenty-four hours a day. This device allows an observant Jewish person on the Sabbath to carry or push objects from his residence, i.e. private property, onto public property and vice versa, activities such as a person would be prohibited from doing otherwise by creating the fiction of a communal "private" domain. Although its use is specifically for the Sabbath, the eruv is maintained throughout the year by observant Jews. New York has about thirty existing eruvs, there are nine eruvs in New Jersey, and many others scattered throughout the United States.

It appears that on or about April 10, 1984, at a monthly meeting of Community Board No. 14 the eruv committee, consisting of representatives of four Orthodox Congregations, was given permission to construct and maintain an eruv. The eruv was to span Beach 16th Street to Beach 149th Street and the beach to Beach Channel Drive, an area covering approximately ninety blocks. Application was then made to the New York City Department of General Services for permission to use sixty-three New York City lamp poles, which was granted subject to certain conditions not relevant herein. Application was also made to the New York City Department of Parks and Recreation (hereinafter "Parks Department") for permission to increase the height of sea fences covering ten city streets to a minimum of forty inches. (The height of the sea fences on the remaining streets within the eruv range from between forty and seventy-five inches.) The eruv was completed on or about April 1, 1985 at a cost of approximately $18,000 entirely financed by the eruv committee.

Plaintiffs filed their complaint on March 12, 1985 alleging, inter alia, as follows:

" * * * the enclosing of the aforedescribed area by this religious device will create a religious aura in and have a metaphysical impact on the area which will force myself and other residents to assume special burdens to avoid. The only way to avoid this unwelcomed and unwanted religious device and the resultant religious aura and metaphysical impact in the area would be to move-away from the area and find residence elsewhere, in a neighborhood free from religious aura and/or designation." (See Affidavit of plaintiff Joseph M. Smith, dated March 9, 1985, pp 5 and 6, annexed to the papers.)

In opposition to plaintiffs' motion for a preliminary injunction and in support of their motion to dismiss the complaint and for summary judgment, defendants argue that plaintiff, individually, lacks standing, that the eruv is not a religious symbol or device but a legal fiction created by Jewish law, that even if the eruv is such a symbol or device it does not violate the Establishment Clause and that the Free Exercise Clause requires that City agencies accommodate the religious customs of the Orthodox Jewish Community. It is further alleged that all actions taken by agencies of New York City were within their normal policies, rules and regulations.

With respect to the issue of standing, the court determines that plaintiff, individually, may maintain this action. The trend in New York State has been to expand rather than contract the doctrine of standing, especially in cases where failure to accord standing would result in no person being able to contest the action. (Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865; Matter of Douglaston Civic Assn., Inc. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317.) Here, plaintiff's interest in the outcome of this controversy as a resident of Belle Harbor is sufficiently particular to permit him to request judicial intervention to test the constitutionality of the eruv. (Matter of Fritz v. Huntington Hosp., 39 N.Y.2d 339, 384 N.Y.S.2d 92, 348 N.E.2d 547; Boryszewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623, 334 N.E.2d 579.)

Plaintiffs' allegations of improper procedure by Community Board No. 14 in approving the eruv are improperly raised in this action. Plaintiffs' claims against the Community Board must be raised, if at all, in an Article 78 proceeding. We note parenthetically, however, that plaintiffs have not supported their allegations of improper practices with any evidentiary facts.

The court will now address plaintiffs' contention that the eruv has violated plaintiffs' rights under the Establishment Clause of the First Amendment of the Constitution to the United States, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. The religion clauses of the First Amendment to the United States Constitution provide that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The first clause is referred to as the establishment clause, the second the free exercise clause. Although seemingly contradictory, the two clauses must be interpreted together in that their common purpose is to secure religious freedoms. (See Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. of Pittsburgh L.Rev., p. 673.) The difficulty faced by courts in interpreting the aforedescribed clauses has been "to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other". (Walz v. Tax Commission of the City of New York, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697; see, also, Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954; Everson v. Bd of Educ., 330 US 1, 67 S.Ct. 504, 91 L.Ed. 711.) It is important to remember, however, that total separation of church and state is not mandated by the constitution, nor would it be possible, since "[s]ome relationship between government and religious organizations is inevitable". (Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745.) What is mandated by the court is accommodation for religious practices. This notion recognizes "that there are necessary relationships between government and religion; that government cannot be indifferent to religion in American life; and that, far from being hostile or even truly indifferent, it may, and sometimes must, accommodate its instructions and programs to the religious interests of the people". (Tribe, 2 American Constitutional Law, 1978, § 14-4, p. 822; see Lynch v. Donnelly, 465 U.S. ----, ----, 104 S.Ct. 1355, 1359, 79...