Full opinion text
OPINION BASSLER, District Judge. The individual Plaintiffs and the Tenafly Eruv Association, Inc., wish to maintain a ceremonial religious demarcation, known as an eruv, in the Borough of Tenafly’s municipal right-of-way. Specifically, Plaintiffs seek permission to maintain plastic strips, known as lechis, on utility poles in the right-of-way. The Borough of Tenafly, by vote of its Borough Council, denied Plaintiffs’ request and ordered that the lechis, which had already been attached to the poles without Borough permission, be removed. Plaintiffs contend that this denial violated their rights to Free Exercise of Religion and to Free Expression under the First Amendment to the Constitution, and their civil rights as protected by 42 U.S.C. §§ 1983 and 1985. Plaintiffs do not raise a claim under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs do claim that the Borough Council violated their rights under the Fair Housing Act, 42 U.S.C. § 3604(a). Plaintiffs now seek to enjoin Defendants from removing the le-chis. I. BACKGROUND A. Procedural History On December 15, 2000 Plaintiffs Tenafly Eruv Association, Inc., Chaim Book, Yosifa Book, Stefanie Dardick Gotlieb, and Stephen Brenner (collectively “TEAI” or “Plaintiffs”), filed a complaint with the Court, alleging violations of the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§ 1983 and 1985, and the Federal Fair Housing Act (“FHA”) 42 U.S.C. § 3604. In addition to damages, Plaintiffs sought entry of an Order to Show Cause why a preliminary injunction should not be issued, and for the imposition of temporary restraints. Plaintiffs sought to preliminarily enjoin Tenafly or anyone acting in concert with the town from removing or otherwise disturbing the lechis that delineate the boundary of the eruv. After a hearing, the Court entered the Order to Show Cause, and issued a temporary restraining order to prevent interference with or removal of the eruv, pending a preliminary injunction hearing. Pursuant to the Order to Show Cause, a preliminary injunction hearing was scheduled for January 2, 2001. By consent of the parties, temporary restraints were continued and the preliminary injunction hearing postponed to allow time for limited discovery. Once the parties had completed limited discovery, the Court held an evidentiary hearing, which took place on four separate days during April and May of 2001. After a period for the submission of additional briefing and factual affidavits, the Court heard oral argument on July 19, 2001. This Opinion is based on evidence developed at the evidentiary hearing and on evidence submitted by affidavit. The Court has also relied upon the exemplary briefs prepared by Plaintiffs, Defendants, and the American Civil Liberties Union (“ACLU”) of New Jersey. This Opinion contains the Court’s findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent that any conclusions of law constitute findings of fact, they are adopted as such. B. Eruv Background 1. Eruvs Generally An eruv is a ceremonial demarcation of an area, which has its roots in Jewish Law. According to one of Plaintiffs’ experts: the institution of the eruv has been practiced by the Jewish people for over 2,000 years. It is based on principles derived from the Bible which are developed in the Talmud and codified in the Codes of Jewish Law.... [Tjhere is an entire tractate of the Talmud which deals with the subject. (Rabbi Schachter Aff. ¶ 3.) In the most rudimentary terms, Orthodox Jews believe that Jewish Law bars them from lifting, carrying, or pushing objects (i.e. pushing a wheelchair or carrying an infant) beyond the confines of their homes on the Sabbath. For those who acknowledge its legitimacy, the eruv creates a legal fiction, which converts the public domain to a private domain, solely for purposes of lifting, carrying, or pushing on the Sabbath. This allows those who acknowledge the legitimacy of the eruv to engage in activities on the Sabbath that are otherwise prohibited by Jewish Law. The Court adopts the following uncontested definition of an eruv: An eruv, under Jewish law, is an unbroken physical delineation of an area. In tangible terms, it is a defined area created from either natural barriers or artificial means, such as from wires strung across poles. The boundaries of the eruv must resemble a series of doorways. In this case the eruv consists of existing horizontal wires and vertical black rubber coated casings, known as “lechis,” which serve as the sides of the symbolic “doorway.” The eruv permits those Orthodox Jews who acknowledge the legitimacy of the eruv under Jewish Law to carry or push objects from their residences, i.e. private property, onto other private or public property and vice versa on the Jewish Sabbath and Yom Kippur. These are activities that Orthodox Jews believe are prohibited by Jewish law on the Sabbath and Yom Kippur absent the legal fiction of a private domain. (Shapiro Second Suppl. Cert. Ex. H; Defs.’ Proposed Findings of Fact at 6-7.) Defendants submit that the definition of an eruv is not complete without an additional paragraph: In order to create an efficacious eruv under Jewish law, persons creating the eruv must rent the enclosed public and private property for valuable consideration from a government official authorized to control the enclosed area. (Defs.’ Proposed Findings of Fact at 7.) While Defendants contend the paragraph describes a “basic fact that is fundamental to the definition of an eruv,” (Id.), Plaintiffs object on grounds that the paragraph does not define what an eruv is, and that it is misleading absent extensive additional language. (Shapiro Second Suppl. Cert. ¶ 10.) Certainly a ceremonial governmental proclamation, conveying some sort of governmental recognition of the area encompassed by an eruv, is a factor in establishing an eruv. This conclusion is supported by Plaintiffs’ efforts to obtain such a proclamation first from the Borough of Tenafly, and then from Bergen County. (See Opinion Section 1(C)(3), infra.) Nevertheless, Defendants’ definition is misleading to the extent it does not make plain the narrow, legally fictive nature of the rental proclamation. Additional reconciliation of the competing definitions of an eruv is not critical to resolution of the issues pending before the Court. Because the ceremonial proclamation issued in this dispute by Bergen County Executive William P. Schuber on December 16, 1999 is referred to frequently by the parties and is demonstrative of the general nature of such proclamations, the Court reproduces it in its entirety: PROCLAMATION WHEREAS, in accordance with the Jewish Orthodox faith the law of the Sabbath contains commandments prohibiting the pushing and carrying of articles on the Sabbath and other Jewish holy days in the public domain except within certain specified conditions; and WHEREAS, the delineation of an eruv and its construction creates the legal fiction of a private domain in which observant persons of the Jewish faith are permitted to carry or push objects from place to place within the defined area during the Sabbath and other holy days; and WHEREAS, the office of the Bergen County Executive has been petitioned by the Tenafly Eruv Association, Inc., on behalf of those of the Jewish faith who reside within the County of Bergen, bounded by Booth Avenue and Tenafly Road in Englewood; the Borough of Te-nafly; Madison Avenue, Knickerbocker Road and Truman Drive in Cresskill; to rent according to Jewish law, to the Tenafly Eruv Association, Inc, for a period of 30 (thirty) years at a rental rate of one dollar ($1.00), in hand paid, the rights to the aforesaid area for the sole purpose of carrying and/or pushing articles on the Sabbath and Jewish holy days; and WHEREAS, the office of the Bergen County Executive deems it to be in the public interest of those of its residents for whom the petition has been presented be granted the rights described in the petition; Now therefore, I, WILLIAM P. SCHUBER Executive of the County of Bergen, New Jersey do hereby proclaim Wednesday, December 15,1999 as, A GRANT OF RIGHTS IN BERGEN COUNTY The said eruv shall not be valid or binding for any other purpose and this proclamation creates no rights, duties or obligations enforceable in any court whether in law or in equity. This proclamation shall not diminish, increase or affect any other rights granted under New Jersey law, nor shall it be deemed to authorize any physical construction that would otherwise require permission from any local municipal, county or state boards. (Pis.’ Ex. 18, hereinafter the “Bergen Proclamation.”) The Bergen Proclamation is typical of the ceremonial proclamations establishing eruvs in other municipalities, such as: Washington, D.C.; Philadelphia, Pennsylvania; Baltimore, Maryland; Cincinnati, Ohio; Charleston, South Carolina; and Jacksonville, Florida. (Proclamations attached to Chaim Book Cert, as Ex. B.) All of these proclamations delineate the geographic area that will be bounded by the eruv, and rent that area to the group seeking to establish the eruv for the sum of $1.00. (See id.) All of the proclamations also clearly state that the rights to the domain encompassed by the eruv are conveyed for the sole or limited purpose of pushing and carrying on the Sabbath and other Jewish holy days. (See id.) Separate from their disagreement about what constitutes an eruv, the parties also disagree about an eruv’s significance. Defendants contend that the eruv is a religious symbol. (Tr. of April 25, 2001 Court Hearing (“4/25/01 Tr.”) at 13:7.) Plaintiffs, on the other hand, say that it is not a religious symbol, but that it has religious significance. (Id. at 13:11-12.) Again the dispute is not significant for purposes of this Opinion, for even if an eruv is not a religious symbol such as a cross or a menorah, it is sufficient for the Court’s analysis to conclude that it has religious significance, as Plaintiffs themselves acknowledge. In practical terms, according to the testimony of an eruv proponent, while Observant Jews may live in a town without an eruv, it does significantly enhance the practice of their religion. (Test, of Charles Agus, May 1, 2001 (“Agus Tr.”) at 122:11-12.) It allows those who recognize it to attend synagogue with their young children in a way that would not be possible without an eruv. (Agus Tr. at 123:22-25.) It would also allow them to visit their friends’ homes or visit the park on the Sabbath (assuming those places were located within the confines of the eruv), while carrying objects or pushing a stroller. (Stefanie Dardick Gotlieb Cert. ¶ 5; Yosifa Book Cert. ¶ 5.) Plaintiffs contend that believers in the necessity of an eruv who are presently seeking to move to Tenafly might elect not to do so if the eruv is not permitted. (Stephen Brenner Cert. ¶ 6.) 2. The Eruv in Tenafly Geographically, the Tenafly eruv encompasses an area roughly bounded to the south by the border with Englewood and to the north by Hudson Street in Tenafly. (12/7/00 Letter from Chaim Book to the Mayor and Council of Tenafly, attached to Shapiro Second Supp. Cert, as Ex. F, at 2.) The eastern boundary of the eruv runs from Berkley Drive to Ridge Road to Woodland Street, in Tenafly. (Id.) The western border is Tenafly Road. (Id.) The area links to an existing eruv in neighboring Englewood, making it possible for eruv-observant Jews to pass into Engle-wood on the Sabbath while pushing or carrying objects. (Id.) An examination of Joint Exhibit 1, a map of Tenafly delineating the boundaries of the eruv, suggests that 35% to 40% of the Borough of Tenafly is located within the current perimeter of the eruv. Physically, the Tenafly eruv consists first of the contiguous perimeter of existing, overhead utility lines that run along the streets at the boundary of the eruv. These overhead lines form the “tops” of the symbolic “doorways” as described in Plaintiffs’ and Defendants’ agreed-upon definition of an eruv. In order to convert these active overhead utility lines into an eruv under Jewish Law, Plaintiffs were required to attach lechis vertically to the utility poles, to form the “sides” of the symbolic “doorways.” Lechis were attached to approximately 183 utility poles in Tenafly. (Joint Ex. 2.) In the Tenafly eruv, each lechi is comprised of the same hard black plastic material as is used by Verizon to cover its ground wires. Plaintiffs Exhibit 34 is an actual section of the lechi material used in Tenafly. It is U-shaped, approximately three-quarters of an inch wide by one-half inch deep. When applied to the poles, the lechi runs vertically from the ground to the top of the utility pole. (Pis.’ Exs. 35(a)-(b).) Unless a person knew which plastic strips had been hung by Verizon, and which had been hung by Plaintiffs, it would be absolutely impossible to distinguish between a lechi and a covered Verizon ground wire. This is demonstrated by Plaintiffs’ Exhibits 35(a) and 36(a), photographs that the Court has attached to this Opinion as Appendix A. Exhibit 35(a) pictures a Lechi; Exhibit 36(a) a Verizon ground wire cover. After careful observation, the only difference apparent to the Court is that the Verizon ground wire cover is more weathered than the lechi, presumably because it has been on the pole for a longer period of time. C. Events Leading to Tenafly’s Denial of Permission for the Eruv The chronology of events leading to the attachment of the lechis to the utility poles in Tenafly’s right-of-way and the subsequent denial of the request to leave them in place is largely undisputed. Vehemently contested, however, are the motivations of the individuals involved. 1. Initial Meeting with Tenafly Mayor Ann Moscovitz The first contact between supporters of an eruv and the Tenafly Borough government occurred on June 1, 1999. On that date, Mr. Erez Gotlieb and Mr. Gary Osen met with the Mayor of the Borough of Tenafly, Ann Moscovitz, in her office, to discuss the creation of an eruv to encompass the Borough of Tenafly. (Moscovitz Aff. ¶ 3.) The gentlemen explained the nature and purpose of an eruv, and then sought, in exchange for modest compensation, to have the Mayor issue a ceremonial “rental” proclamation, which would allow the eruv to be created under Jewish law. (Id.) While the Mayor had no objection at the time, she indicated to Messrs. Gotlieb and Osen that she did not have the authority to grant or deny such a request, and that a formal proposal would have to be made to the Borough Council. (Moscovitz Aff. ¶ 4.) The Mayor agreed to raise the issue at the Council’s next work session. (Id. ¶ 5.) 2. The Tenafly Borough Council Work Session of July 8, 1999 As she had told Messrs. Gotlieb and Osen, the Mayor did raise the possibility of erecting an eruv in Tenafly at a Borough Council work session on July 8, 1999. (See July 8, 1999 Borough of Tenafly Work Session Tr. (“7/8/99 Tr.”), attached to Shapiro Cert, as Ex. A.) In Tenafly, members of the' public are always invited to attend and listen to these Borough work sessions, but are generally not invited to speak. (Moscovitz Aff. ¶ 5; Borough of Tenafly Council Member Charles Lipson Aff. (“Lipson Aff.”) ¶ 2.) The Mayor and Council can make exceptions to this rule, and at the July 8, 1999 work session, the Council voted to allow the approximately thirty residents who attended to voice their opinions on the eruv. (Id. ¶ 6.) At the Work Session, the Mayor advocated the eruv proposal. For example, the Mayor stated that: [ílfs something that could never [be] seen by anybody[;] [there] is nothing significant about this. Anybody not looking for it would [never] know it was even there. It’s not an obvious thing but allows these people to bring their children to temple. That’s all. You know, whether it makes sense to you or not is not really important.... I mean we don’t have to agree with everyone’s religion ... (7/8/99 Tr. at 2.) Shortly thereafter, the Mayor commented: It’s such an innocuous thing. It’s something that nobody can see or know that’s there. It’s a religious thing, and we have a reputation in this town of permitting people to go to whatever church they wish to go to or temple they wish to go to and to bring their children. (7/8/99 Tr. at 4.) The Mayor stated she “would be very upset if this Council did not permit such a simple request.” (7/8/99 Tr. at 5.) The Work Session did not focus on whether permission should be granted for use of municipal property for an eruv, or whether such permission was required. Instead, the Mayor indicated that “[t]he only reason really that it has to come before us here is because they have to give us something, they have to rent it for the purpose of being an Eruv.” (7/8/99 Tr. at 4.) In fact, it appears that the Council’s only concern was whether to issue the ceremonial proclamation: Mayor: It’s certainly [not] as obvious as having a creche in Highland Park. You know it’s just municipal property. I’m not sure we can even stop them from doing it, but, you know, it’s not. [Lesnevich]: You can stop them. They can’t force you to rent it to them for a dollar, they can do whatever they want as far as calling it what they want within their concept but they could not force you to sign an ordinance renting it. Man: I was told they can deal directly with the Cable Company. [Lesnevich]: If they dealt with the cable company it’s nothing you can do about it because Cablevision can do, they have the right to do that. Man: That was my understanding. [Kerge]: I think the issue really, prob- . ably has to do with a recognition, their recognition of their being able to do it. If they can go directly to cable and they don’t need to rent, to have any agreement from us, then why not do that. Wouldn’t that be easier? [Lesnevich]: I don’t know perhaps. I certainly don’t know the answer. Their theology requires that government, governmental entity to give the rental as opposed to a commercial enterprise. (7/8/99 Tr. at 6-7.) Notably absent from the Council’s discussion was any mention that even if permission were granted by the telephone or cable companies to use the poles, permission would still be required from the Borough to use the municipal right-of-way. As Plaintiffs correctly note, Borough Counsel Walter Lesnevich did not mention that municipal approval would be required not only for issuance of a ceremonial proclamation, but also for use of the Borough’s right-of-way. (Chaim Book Cert. ¶ 14.) For the remainder of the hearing, the Council and public discussed the propriety of issuing the ceremonial “rental” proclamation, and what impact that proclamation and the attendant establishment of an eruv might have on Tenafly. The meeting was contentious, and numerous members of the public voiced their objections to the eruv. The mayor herself was “shocked and dismayed by the reaction of some of the residents present.” (Moscovitz Aff. ¶ 6.) The statements in opposition to the eruv were initially innocuous. For instance, one person who spoke stated: suppose another religion comes before us and they ask us to allow them to do something that’s for their religion. I don’t know what that religion could be or what it is, but once we establish the fact that we do something special for one particular sect of a religion we open ourselves to allow, again to allow anybody and use that as a precedent to establish whatever they want to do. (7/8/99 Tr. at 6.) Discussions quickly turned away from the precedent that might be set for other groups, and to concerns that had been voiced to the Council by some residents that the establishment of an eruv might lead to the formation of an Orthodox community in Tenafly: Man: ... Some of my Jewish friends object[ ] to this very strongly and you know, Jewish faith and tell me why? Mayor: I have no answer for you. Man: I’ve heard why. Mayor: Why? Man: They think we’re going to turn it into an Orthodox Community. Mayor: Really? Are we going to become Orthodox because of wires going on the poles? Man: That’s a stretch. That’s a real stretch. Mayor: That’s a real stretch. I’m not going to become Orthodox, see? Man: I’m not impugning any religion at this point in time. I’m not imputing the Orthodox at all, but that seems to be a concern that the Orthodoxy would take over. Mayor: That’s what Adrian Meltzer said I believe when she voted against having the Lubavitch in town in the first place. I think that’s a terrible thing to do. I cannot believe it. (7/8/99 Tr. at 7.) This theme was echoed by many of those who got up to speak after the work session was opened to the public. For example, one resident stated that an eruv “[i]n essence has the potential for changing the entire character of the community.” (7/8/99 Tr. at 9.) He noted that in a community where his brother had lived, after the creation of an eruv “the entire community changed over a period of five to ten years to the point where shopkeepers were ostracized if they kept their shops open on Saturday on the Sabbath.” (Id.) The resident continued: It is not simply a matter of being able to carry your child to the synagogue, they have been able to go to synagogue for five years with nobody interfering. This is something that has considerable implications in terms of changing the social community. It makes it part of their private domain. I personally object to the use of our public property to converting it to anyone’s private domain .... I just know the social changes as [Councilman Lipson] intimated it is more than this simple innocuous thing. I have no intent in becoming involved in trying to keep out certain religions and this is not a matter of anti-Semitism or keeping out any religion or any church. It’s a matter of not allowing any church or any religion to impose their beliefs and their use of our public properties beyond what it should be. (Id. at 9-10.) The next resident to speak against the eruv began by echoing concerns that the grant of a ceremonial proclamation to proponents of the eruv might constitute a violation of the separation between church and state. (7/8/99 Tr. at 12.) His comments then shifted to a concern for the community impact of the Borough’s decision. He stated: Well, they start to insist that shops close on Saturday. If they start to try to think of the neighborhood as their sole possession. The attitudes of community change. So, I would say this is not a simple issue about cables on poles. This is much more an issue the character of a community being committed to diversity rather than beginning to be separate sectors supporters of a town. And therefore I very strongly oppose this as a person who absolutely would be there at the drop of a hat to protect their free exercise of religion. This is not about that. (7/8/99 Tr. at 12-13.) In response to the comments, the Mayor asked whether there was a concern about the symbolic rental of the town. (Id.) The Mayor noted that while a symbolic rental of Tenafiy had concerned her as well: Having the wires go up and having, symbolically wrap around the town didn’t bother me at all because it’s something that isn’t seen, it isn’t an imposition on anybody else, anymore than having a little k with a circle on your margarine is going to make you kosher .... The part that really was a concern to me was the word rental. That they were renting the city of Tenafly. {Id.) Speakers again reiterated their concern about the eruv’s potential to change the community: I think that Tenafly, that most of us would agree that the community is very diverse, and the people of all nationalities and all religions, I mean, there’s no block in town that’s like Korean or a Chinese quarter. It’s a small town and the beauty of it is the diversity and the richness and that’s what I think we’re all about. I would worry that by our giving this, we’re saying that they have a right to have a community in our community, and our community is so small, it’s not like we’re so big that they need to congregate in one area.... I just don’t see a need to give this to them because we’re all about diversity and they’re free to wherever they want. (7/8/99 Tr. at 14-15.) The last member of the public to speak at the work session voiced her thoughts on an eruv’s impact on nearby Teaneck, New Jersey. (7/8/99 Tr. at 18-19.) During Tenafly’s debates on whether an eruv should be constructed, the social changes in Teaneck were oft-cited worst-case examples of the impact an eruv might have on a community. In the citizen’s opinion, the Council should: Just take a look at what happened in Teaneck. Teaneck was beautiful. I love this area. I’ve lived here for 65 years. I used to shop in Teaneck when I lived in Englewood. Teaneck had beautiful stores. Almost every store in Teaneck today is geared towards the Orthodox. There is a racial imbalance in the school system in Teaneck because most of the Orthodox children go to Yeshivas and they go to religious_Who’s left in the Teaneck school system but those children [who] can not afford to go to a private school. There is a serious imbalance there and I have concern that this could possibly happen to Tenafly because the more ... If this is granted, let’s all be honest, more and more Orthodox people are going to move here. The more people that move here, they’re not going to buy their meat in the Grand Union, they’re going to want to go to Glat Kosher Orthodox store. They’re going to be looking to open up businesses in Tenafly. They’re going to have the same thing that happened in Teaneck. This is my concern. I have no children in school anymore, but I am concerned about the school system, and I am concerned about what will come in to our local shopping areas. And I think that we should seriously consider this. (7/8/99 Tr. at 19.) As the hearing drew to a close, a member of the Council implored those present that: I’m serious. We can’t be flippant. This is a very serious concern .... [a]nd it’s a concern that I have ... that’s expressed from, by a lot of people about a change in the community. And it’s true, it does become a change in the community. It’s become a change in every community where an ultra-orthodox group has come in. They’ve willed the change. They’ve willed a change in the state of Israel. They’ve willed it so much so that they’ve stoned cars that drive down the streets on the Sabbath. Ultra-Orthodox. My friend’s son became an Ultra-Orthodox person so I’m not_that’s that person’s belief if that’s that person’s belief, and that person has the right to have that belief and I’m not denigrating that belief.... (7/8/99 Tr. at 19.) At the conclusion of the Work Session, the Council decided without a vote not to pursue the eruv issue unless a formal, written request was made of the Council. (Id. at 21.) At the time this decision was made, members of the Council were aware that Tenafly had been threatened with suit in an unrelated religious matter, and that the Borough had been the subject of past litigation in a religious dispute. (Id. at 10.) The Mayor agreed to inform the gentlemen she had spoken with about the need for a formal written request for issuance of a ceremonial proclamation, and that the matter could be placed on the calendar for September if they so desired. (Id. at 21-22.) After the meeting, the Mayor contacted Mr. Gotlieb on the phone (since neither he nor Mr. Osen had been at the work session), and informed him that because of concerns she and others had with the symbolic rental of the streets of Tenafly, she did not feel the Council was favorably disposed to grant the application for issuance of a ceremonial proclamation. (Moscovitz Aff. ¶ 6.) Nonetheless, the Mayor did invite Mr. Gotlieb to make a formal application and proposal at a public meeting, so that there would be an official public vote. (Id. ¶ 7.) No such formal application was made to the Borough Council prior to the construction of the Tenafly eruv. 3. Construction of the Tenafly Eruv Realizing that the Tenafly Borough Council was not likely to issue the ceremonial proclamation they sought, in or about August of 1999 representatives of TEAI approached the office of Bergen County Executive Pat Schuber and asked if he would issue the ceremonial proclamation. (Chaim Book Cert. ¶ 16.) Since Tenafly is within Bergen County, a proclamation from the County Executive would be sufficient for TEAI’s purposes, and allow them to erect an eruv according to Jewish Law. (Id.) Plaintiffs assert that they were informed by Bergen County’s legal counsel that there was no legal impediment to Bergen County’s issuing the proclamation they sought, and that Executive Schuber had agreed to do so. (Chaim Book Cert. ¶ 17.) On or about December 15, 1999, Bergen County Executive Schuber issued the ceremonial proclamation. (Chaim Book Cert. ¶ 18; Pis.’ Ex. 18.) With ceremonial proclamation in hand, Plaintiffs claim to have had a good faith belief that approval of the Tenafly Borough Council was not necessary to use the utility poles and that approval of Bell Atlantic Telephone Company (subsequently re-named and referred to hereinafter as “Verizon”), the owner of the poles, would suffice. (Chaim Book Cert. ¶ 19.) The Court finds this assertion to be credible. The Court reaches this conclusion because after a review of the July 8, 1999 Work Session transcript and audio recording, a reasonable witness to those proceedings could have concluded that while Borough permission was required for issuance of a ceremonial proclamation, someone seeking to hang wires on the utility poles could contact either the telephone or cable company directly. (See, e.g., 7/8/99 Tr. at 6-7.) Acting upon this good faith belief, in April, 2000 Plaintiff Chaim Book sought Verizon’s permission to attach the lechis necessary for the eruv to Verizon’s poles. (Chaim Book Cert. ¶ 19.) Prior to granting permission to use the poles, Verizon required that TEAI complete Verizon’s standard eruv license agreement and secure adequate insurance for the eruv materials. (Id. ¶¶ 20-22.) Verizon also requested evidence of the legal authority TEAI had to place and maintain eruv materials on the utility poles in Tenafly. (Chaim Book Cert. ¶ 20.) Plaintiffs claim that they informed Verizon about the Bergen Proclamation and about their belief that local municipal approval was not required. (Id.) Plaintiffs further assert that an in-house attorney for Verizon engaged in independent legal research as to whether local municipal approval was required and concluded that it was not. (Id.) Apparently satisfied that all legal requirements had been met, on June 5, 2000 Verizon granted TEAI permission to use its poles. (Id. ¶ 21.) In mid-June, 2000, Cablevision, holders of the cable television franchise in Tenafly, agreed to assist Plaintiffs in affixing the lechis to Verizon’s utility poles as a community service. (Chaim Book Cert. ¶ 24.) Cablevision provided the personnel and trucks for this undertaking. (Id.) With the assistance of Cablevision, the Tenafly eruv was completed in September, 2000. (Id.) Plaintiffs represent that because the eruv will remain privately supported, no municipal maintenance will be required. (Id. ¶ 51.) 4. Tenafly’s Response to the Eruv In late August, 2000, the Borough of Tenafly became aware that an eruv had been constructed without its permission, when residents adjacent to the Tenafly Nature Center informed Councilwoman Martha Kerge, the Mayor, and the administration that a wire had been hung through the Nature Center. (Moscovitz Aff. ¶¶ 10-11; Kerge Aff. ¶ 5.) Since no permit had been issued to hang this wire, the Mayor ordered the wire be removed. (Id.) When it came to the Mayor’s attention that Bergen County Executive Pat Schu-ber had issued the ceremonial proclamation, she contacted his office “to complain about the propriety of his issuing a proclamation concerning the use of our municipal property.” (Moscovitz Aff. ¶ 12.) Plaintiffs claim that Executive Schuber’s Chief of Staff informed the Mayor that Mr. Schu-ber had no plans to rescind the proclamation, as it constituted a reasonable community accommodation. (Chaim Book Cert. ¶ 29.) Councilwoman Kerge also contacted the Bergen County Executive, to question Mr. Schuber’s authority to issue a proclamation binding on Tenafly. (Kerge Aff. ¶ 4.) Plaintiffs claim that Councilwoman Kerge not only questioned the proclamation but sought its recission, and claim that the Mayor and others contacted Verizon to seek a revocation of the eruv agreement. (Chaim Book Cert. ¶ 30.) Plaintiffs did not adduce any evidence to support these allegations. 5. September H, 2000 Conversation On September 14, 2000, in an attempt to resolve the dispute, Mayor Moscovitz and Councilman Charles Lipson met with Rabbi Shmuel Goldin of Congregation Ahavas Torah in Englewood, New Jersey, and Joy Kurland, Director of the Jewish Community Relations Council. (Chaim Book Cert. ¶ 32; Rabbi Goldin Aff. ¶ 7.) While the occurrence of this meeting is undisputed, what was said is not. According to Rabbi Goldin, he made it clear to those present that he was not acting as a representative of TEAI, and merely came as an interested member of the public who was familiar with the concept of an eruv. (Rabbi Goldin Aff. ¶ 8.) After he had discussed the reasons for an eruv and the logic behind it, the Mayor expressed her concern about the symbolism of the Borough “renting the town”. (Id. ¶¶ 9, 10.) Rabbi Goldin explained that the Bergen Proclamation did not have such a legal effect, and pressed the Mayor for what her real concerns were. (Id.) Allegedly, the Mayor said that her real concern was that she “didn’t want them moving in.” (Id. ¶ 11; Test, of Shmuel Goldin, May 1, 2001 (“Goldin Tr.”) at 127:15-21.) Rabbi Goldin interpreted “them” to be Orthodox Jews. (Id.) The Mayor also expressed a concern that Orthodox Jews might throw stones at cars which passed on the Sabbath, or would block traffic on Saturdays by walking in the streets. (Id. ¶ 12.) She became quite emotional in describing the anti-Jewish discrimination she had experienced when she first moved to Tenafly, but expressed her pride that the Borough had evolved sufficiently to permit her to become its first Jewish Mayor. (Id. ¶ 13.) The mayor then allegedly expressed her concern that an influx of Orthodox Jews would jeopardize the acceptance and progress already achieved by the Jewish population in Te-nafly. (Id. ¶ 14.) Rabbi Goldin objected strongly to these alleged statements. It is undisputed that at one point he attempted to leave the meeting. (Id. ¶ 14.) Ms. Kurland and the Mayor prevailed upon him not to do so, and the meeting continued. (Id.; Moscovitz Tr. at 81:10-15.) According to the Mayor any perceived hurtful comments were not properly attributable to her, but instead to members of the public whom she was quoting. (Mos-covitz Tr. at 77:17-25, 78:1-7.) The Mayor contends that Rabbi Goldin twisted her words and the opinions of others and threw them back at her in his affidavit. (Moscovitz Aff. ¶ 16.) While she did admittedly relate a story about how Orthodox Jews had thrown stones at her daughtér while her daughter was horseback riding on the Sabbath, she related it merely as a point of fact. (Id.; Moscovitz Tr. at 80:21-23.) Councilman Lipson has also indicated that while Rabbi Goldin may have perceived some of the Mayor’s comments to be offensive, he personally did not consider any of the Mayor’s statements to be offensive. (Lipson Aff. ¶ 7; Test, of Charles M. Lipson, May 1, 2001 (“Lipson Tr.”) at 20:16-24.) Having heard live testimony from Mayor Moscovitz, Councilman Lipson, and Rabbi Goldin, the Court credits Rabbi Goldin’s testimony, to the extent that he described his perceptions of the meeting with the Mayor and Councilman Lipson. It is uncontested that the Rabbi got up to leave the meeting, and that he did so after taking offense at statements that were made by the Mayor. While the Court does not reach the question of whether the Mayor intended to make comments that were offensive to Orthodox Jews, it is certainly apparent that to some degree she succeeded in doing so. That having been said, the Court does not believe the Mayor said she “didn’t want them moving in” in light of her recorded statements in support of the eruv at the July 8, 1999 Work Session. Plaintiffs contend that at the conclusion of the meeting a compromise was proposed, whereby the Borough would “drop the matter” if the TEAI agreed not string any additional wires through the town, removed existing wires in the nature center, and limited placement of its lechis to the utility poles. (Chaim Book Cert. ¶ 34; Rabbi Goldin Aff. ¶¶ 16-20.) Defendants assert that no such agreement was reached. (Lip-son Aff. ¶ 8.) Suffice it to say, nothing came of the negotiations, and no compromise was reached. (See Pis.’ Ex. 17.) 6. October SI, 2000 Conversation On or about October 31, 2000, Charles Agus, a supporter of the eruv in Tenafly but not a named Plaintiff in this matter, contacted Mayor Moscovitz in hopes of opening a dialogue on the subject of the eruv. (Agus Cert. ¶ 4.) During this approximately hour-long conversation, he and the Mayor discussed the views of those community members who oppose the establishment of the eruv. (Id. ¶ 5; Moscovitz Aff. ¶ 19; Moscovitz Tr. at 91:1-101:6.) According to Mr. Agus, during this conversation the Mayor implied that Tean-eck’s Orthodox Jewish population was responsible for the decline in Teaneck’s public school system and responsible for the stores there closing on Saturday or going out of business. (Agus Cert. ¶¶ 6, 12; Agus Tr. at 115:6-116:13.) He claims the Mayor also implied that the establishment of an eruv in Tenafly might cause more Orthodox Jews to move to Tenafly, which would lead to the establishment of many small synagogues in Tenafly (the so-called “Spring Valley Phenomenon” so named after a town in New York with a large Orthodox population). (Agus Cert. ¶ 10;, Agus Tr. at 116:2.) To support her assertion, the Mayor allegedly commented that a broker in Englewood had informed her forty families were waiting to move to Tenafly if an eruv were established. (Agus Cert. ¶ 11; Agus Tr. at 116:7.) The Mayor denies Mr. Agus’s allegations, and contends that she merely posed Mr. Agus a question, about what he thought the impact on the public schools would be if a large number of people moved to Tenafly and then withheld their children from the schools. (Moscovitz Aff. ¶ 19; Moscovitz Tr. at 95:14-15.) She also allegedly never said that the Businesses in Tenafly would be harmed, but instead said they would “change” and perhaps close on Saturdays. (Moscovitz Tr. at 98:10-11.) Mr. Agus’s impression of the conversation was that the Mayor had sincere concerns about the potential influx of Orthodox Jews, “was opposed to the Eruv, and ... had serious concerns about the Eruv’s future impact on the demographic makeup of the town.” (Id. ¶¶ 14, 15.) Defendants counter that Mr. Agus misinterpreted the Mayor’s words, and read into the conversation negative intent where there was none. Having heard both Mr. Agus and the Mayor testify regarding this matter, the Court credits Mr. Agus’s testimony. 7. Tenafly’s Efforts to Remove the Eruv On September 26, 2000, at the request of the Mayor, the Borough Administrator contacted Cablevision to inquire about why they had aided in construction of the eruv without permission of the Borough. (DiGia-como First Aff. ¶ 8.) He was allegedly informed that a Rabbi had represented to Cablevision that TEAI had obtained all of the necessary municipal permits. (Id.) On October 10, 2000, at the direction of the Mayor and Council, Borough Administrator DiGiacomo wrote to Cablevision requesting that the lechis be removed from the poles as soon as possible. (Id. ¶ 8-9.) On October 23, 2000, Cablevision wrote to Plaintiffs and informed them that they had been asked by the Borough to remove the eruv material. (Chaim Book Cert. ¶ 39; 10/23/00 Letter from Cablevision to Pis., attached to Chaim Book Cert, as Ex. C.) In that letter, Cablevision stated in operative part: As you know, Cablevision agreed to assist you with the Eruv project in Tenafly as a community service in reliance upon your representation that you had obtained all authorizations necessary to place these plastic holders in the public right-of-ways. You provided us with copies of the pole licenses, but we have now been notified by the municipality that you never obtained the consent of the Borough for use of the public right-of-ways. As a result, Cablevision has been instructed by the municipality to immediately remove these plastic holders. Accordingly, this letter serves to notify you that, unless you can present us with a duly authorized right to use the municipal rights-of-way for the purpose of the eruv, Cablevision shall be compelled to honor the municipality’s request and shall commence taking the holders down within three days of your receipt of this letter. We regret the position in which we find ourselves and hope you understand that Cablevision cannot afford to jeopardize its relationship with the Borough or its franchise to provide telecommunications services within the Borough. (10/23/00 Letter from Cablevision to Pis., attached to Chaim Book Cert, as Ex. C.) After receiving the letter from Cablevision, counsel for Plaintiffs were able to come to an agreement with the Borough, which allowed the eruv to remain up for a period of thirty days so that TEAI could file an application with the Borough Council for permission to retain the eruv in place. (Chaim Book Cert. ¶ 41; DiGiacomo First Aff. ¶ 10.) This agreement was memorialized in a letter from Plaintiffs’ counsel to the Borough Attorney. (11/2/00 Letter from Shapiro to Lesnevich, attached to Pis.’ Ex. 14.) That letter reads in part: I also appreciate your advice that the Borough has no specific ordinance covering this matter or any particular format for the Eruv Association to follow in submitting its request. A written request will be promptly submitted. (Id. at 2.) In accordance with the agreement, an application was filed with the Borough on November 7, 2000. (Chaim Book Cert. ¶ 42; Appl. attached to Compl. as Ex. A.) This application did not seek a ceremonial proclamation or any other endorsement by the Borough of Tenafly; instead it only asked “the members of the Borough Council not to remove, or order the removal of, the ‘Lechis ’ on the utility poles in the Borough of Tenafly.” (Compl. Ex. A at 2.) To aid in the Borough’s consideration of the request, on November 20, 2000 Estie and Charles Agus sent a packet of informational materials to the Council. These materials included their synagogue’s vision statement (which explained their reasons for seeking an eruv in Tenafly) (Pis.’ Ex. 15), a letter from the United Jewish Appeal asking that the eruv be permitted (Chaim Book Cert. Ex. B), a letter sent from President George H.W. Bush to a Jewish congregation in Washington, D.C. expressing support for their eruv (Chaim Book Cert. Ex. A), and a list of responses to potential objections to the eruv (Pis.’ Ex. 16). 8. The November 21, 2000 Work Session At a work session on November 21, 2000, the Borough Council discussed how to proceed with TEAI’s application. (See November 21, 2000 Borough of Tenafly Work Session Tr. (“11/21/00 Tr.”), attached to Shapiro Second Suppl. Cert, as Ex. G.) After limited discussion, the Council agreed to hear TEAI’s formal proposal at a public hearing to commence on November 28, 2000. (11/21/00 Tr. at 8.) Because it was known that Councilman Richard Wilson and Councilman Lipson would miss the November 28th hearing, the Council planned to begin the hearing on November 28th, and conclude it on December 12th, 2000. (Id.) According to Borough Attorney Lesne-vich, the application to the Borough Council was “not viewed as a sign application. It was viewed as a use of the right-of-way. That is why it went right to the Mayor and Council.” (4/25/01 Tr. at 21:24-25, 22:1.) In the eyes of the Borough Attorney, Plaintiffs’ request fell under Tenafly Ordinance 691, which prohibited the placement of any materials in the right-of-way. (Id. at 22:5-23.) In his estimation, any contrary use would have to be approved by the Mayor and Council. Although Defendants also submitted a copy of Tenafly’s sign ordinance to the Court, according to the Te-nafly Borough Attorney the decision to deny TEAI’s application was not made based on the provisions of that ordinance, but was instead based only on Tenafly Ordinance 691. (Id. at 24:6-21.) 9. The November 28, 2000 and December 12, 2000 Public Hearings At the two hearings on November 28 and December 12, 2000, fifty-four members of the .public rose to speak on the eruv matter. A handful of these individuals spoke at both hearings. Of the total, approximately twenty-six spoke in favor of the eruv, and twenty-five spoke against it. The remainder made either neutral comments or asked rhetorical questions of the crowd. Borough Attorney Lesnevich imposed ground rules for the hearings, whereby dialogue between members of the public and the Council was not permitted. (November 28, 2000 Borough of Tenafly Public Hearing Tr. (“11/28/00 Tr.”), attached to Shapiro Cert, as Ex. B, at 13:12-23.) Council members were instructed not to respond to questions, since the hearing was viewed as an opportunity for them to listen to what the public had to say. (Id.) At both hearings Chaim Book, spokesman for TEAI, was afforded the opportunity to frame Plaintiffs’ request to the Council. (11/28/00 Tr. at 13:6-7; December 12, 2000 Borough of Tenafly Public Hearing Tr. (“12/12/00 Tr.”), attached to Shapiro Cert, as Ex. C, at 16:13-20:10.) At the November 28, 2000 hearing, after initially apologizing for the manner in which the eruv came to the community’s attention, he explained in great detail what had drawn him to Tenafly, what an eruv was, and why he felt it would be beneficial to have an eruv in Tenafly. (11/28/00 Tr. at 14:10-34:10.) He also explained how it was an eruv had come to exist on the Borough’s utility poles, despite the absence of Borough permission for it. (Id.) Lastly, he discussed the case of ACLU of New Jersey v. City of Long Branch, 670 F.Supp. 1293 (D.N.J.1987), which held that eruvs may be permitted by a municipality without fear of violating the Establishment Clause. (12/12/00 Tr. at 32:14-33:21.) After Mr. Book’s introductory statement, the remainder of the November 28, 2000 hearing was comprised of an even mix of commentary both for and against the eruv. While one member of the public commented that “the hate and the bitterness in th[e] room [was] overwhelming,” (11/28/00 Tr. at 81:6-7), the next speaker took issue with that statement, and said “I kind of resent the idea ... that there’s a palpable hatred and bitterness that’s exhibited. I think there’s a disagreement, no question about that, but I don’t equate disagreement with hatred and bitterness.” (Id. at 81:21-82:4.) Having had an opportunity to listen to the audio tape of the hearing, the Court finds that the second comment is a fairer assessment of the November 28, 2000 hearing. Although comments at the November 28th hearing occasionally mimicked the statements that were made at the first hearing in July of 1999, far more eruv supporters were present to make their case at the November 28, 2000 hearing. The statements made in opposition to the eruv at the November 28th hearing highlighted the major themes that run through this dispute. Residents were concerned that the eruv had been erected without permission, might violate the separation between church and state, would cause the Borough to lose control of its right-of-way, would lead to the formation of an insular “community within a community,” would be divisive and destructive to Tenafly, and was unnecessary given the self-imposed religious restrictions it was designed to alleviate. By way of example, residents felt that Tenafly should not favor one particular religious group. (11/28/00 Tr. at 38:23-39:21.) Others took issue with the fact that the Borough Council had been circumvented when Bergen County was contacted for issuance of the ceremonial proclamation, and that this proclamation had been used to secure permission from Verizon and Cablevision to hang the eruv without the Borough’s permission. (Id. at 41:7-11.) It was also noted that it is not the place of the Borough to be involved in religion. (Id. at 79:7-10.) There was also the oft repeated concern that just because Long Branch permitted a town to have an eruv, the decision did not require a town to do so, and that in a small, diverse town such as Tenafly an eruv’s “artificial contrivance to get around Orthodox Judaic religious laws” would set a terrible precedent for future actions by the town. (Id. at 42:1-20.) It was opined that letting any one group have such religious access to the right-of-way would make it impossible to differentiate between requests in the future, or establish a precedent that could not later be undone. (Id. at 44:19-22, 70:18-22, 73:2-5.) Others took issue with the erection of a permanent structure on public property to aid a religious group in calling the Borough their private domain. (Id. at 61:17-20.) Residents commented that they were opposed to the creation of a “community within a community,” because of the perceived attendant social evils that would result. (Id. at 77:15-19.) As one resident said, “I do not want to live in someone else’s domain, also known as a ghetto.” (Id. at 77:21-23.) Some residents felt that the eruv was “like a hostile take-over” of the community, in which the Borough should not assist. (Id. at 44:17-18.) Others thought it would lead to a demise of the public schools, which the Borough should not facilitate. (Id. at 47:1-9.) It was also expressed that residents liked the town the way it is, and did not want to visit the change wrought by an eruv upon it. (Id. at 52:10-12.) It was also questioned why the town should give up a portion of its right-of-way to help ease restrictions that a religion had imposed upon itself. (Id. at 60:21-23.) Still others pointed out that the eruv supporters were limited by their faith itself, and that the town was not responsible for their burden. (Id. at 64:24-65:7.) If they wanted to, they could live in a town that had decided to accommodate them, as opposed to forcing accommodation upon Tenafly. (Id.) One seemed to frame the proponents’ view clearly when he said “it would seem to me that if the opportunity arises for the town to offer me a convenience which I appreciate, which others appreciate, which is not at the detriment” of anyone else, the town should do so. (Id. at 76:9-17.) In the face of this harsh criticism, many citizens were strongly in favor of the eruv. It was felt by some that the speakers against the eruv simply wanted to keep an influx of Orthodox Jews out of Tenafly. (Id. at 80:15-17.) Some saw the eruv as a harmless measure to increase diversity, the denial of which would inevitably and unfortunately lead to litigation. (Id. at 45:18-23.) Others felt it was a reasonable accommodation, which would increase diversity or improve their quality of life. (Id. at 48:1-2, 51:6-11, 64:1-14.) Some speakers sought to dispel the misconception that an eruv would lead to stores closing on Saturday or to a demise of the public schools. (Id. at 56:11-57:13.) Others pointed out that it was not an infringement on any other residents of Tenafly, and that it was a concession to religious freedom that would harm no one. (Id. at 63:17-19, 71:15-23.) It was also noted that doing something which would make more affluent people want to live in Tenafly would be good for the town, since it would improve the real estate market. (Id. at 69:10-14.) Finally, there was an Englewood resident who spoke on behalf of the eruv, not because he wished to move to Tenafly, but because an eruv would make it easier for him to walk into Tenafly to see his friends on the Sabbath. (Id. at 100:13-23.) Some residents did not speak out for or against the eruv, but instead asked questions they hoped might be answered, or sought to make neutral points. For instance, one resident asked how long the proponents of the eruv had lived in Tenafly, and wanted to know how they had gotten along without an eruv. (Id. at 52:21-53:2.) Another commented that if the matter were so important, it should be put on the ballot for a public vote. (Id. at 62:11-14.) The December 12, 2000 hearing was in many respects identical to the one that took place on November 28, 2000. Mr. Book was given a chance to make introductory remarks, and closing remarks. (12/12/00 Tr. at 16:13-20:10.) The largest distinction at this hearing was that in addition to members of the public, members of various organizations were also present. This included the leaders of several local Christian churches. Mr. Book had invited Rabbi Howard Jachter, of the Torah Academy of Bergen County, to speak to the group in greater detail about the nature of an eruv, and what impact it might have on the community. (12/12/00 Tr. at 20:24-34:1.) Rabbi Jachter also gave a history of the eruv movement in the United States (which began in the 1970’s), and discussed many of the places in the United States that had eruvs. (Id.) He noted that in Washington D.C., even the Supreme Court of the United States sits within an eruv. (Id. at 27:3-4.) Most importantly, he tried to dispel some of the perceived misconceptions that existed about the nature of the religious domain created by the emv. (Id. at 30:11-31:22.) The Regional Director of the Anti Defamation League also spoke, and noted that while he would not want any religious symbol permanently placed on public property, the eruv was not a religious symbol but instead a reasonable accommodation of religion. (Id. at 43:17-22, 44:1-4.) He reiterated the precedent of Long Branch and concluded that it “is a secular accommodation for people to engage in secular activities, not religious activities.” (Id. at 45:5-7.) The comments made by the public at the second hearing were similar to those made on November 28th. For example, there was fear that approving the eruv would result in a pandora’s box effect, whereby the town would have to grant all private religious requests to use public property. (Id. at 35:24-25.) Others pointed out that it would not be anti-Semitic to vote against the eruv, but would instead be a political decision about property rights. (Id. at 38:1-3.) One noted that the radical change that the eruv would bring would tarnish the community of Tenafly that all had enjoyed. (Id. at 51:9-15.) Another statement was made to the effect that it was the all-encompassing nature of the emv that many persons, including secular Jews, found antithetical to Jewish heritage. (Id. at 90:14-18.) It was noted that the eruv “is a thorn in the side of the community of Tenafly and I think it will become a festering wound in the community of Tenafly.” (Id. at 108:14-17.) One resident commented, “I hope your Mayor and your Council have the courage” to vote against the small group of people who sought to install an eruv and ruin the community.” (Id. at 79:14-18.) There were also numerous individuals at the second hearing who spoke out in favor of an eruv in Tenafly. For example, one noted that “surely, a town that brandished orange ribbons tied to almost every pole in town for what I think was several years can tolerate some unobtrusive markers that facilitate a better life for a segment of the community.” (Id. at 52:11-16.) Another said, “I can see no downside to the erection of the Eruv at all. I do see that the Tenafly Eruv Association made a grave faux pas in attempting to erect the Eruv without permission.” (Id. at 86:4-7.) At the conclusion of the December 12, 2000 hearing, Mr. Book was again given the opportunity to make closing remarks. During these remarks, he again extolled the virtue of an eruv, and its importance to those who believed in it. (Id. at 110:23-119:3.) He also again mentioned an eruv’s permissibility under the Establishment Clause, by commenting on ACLU v. Long Branch. At the conclusion of the December 12, 2000 hearing, the Tenafly Borough Council voted 5-0 to deny TEAI’s application. (Chaim Book Cert. ¶ 47; 12/12/00 Tr. at 126:4-15.) There was no written resolution memorializing the decision. Council Member Christian Yegen was not present, and Mayor Moscovitz did not vote. (Id.) Only Council members Kerge and Sullivan made any statements on the record regarding why they had voted as they did. (See Section 1(D) of this Opinion, infra.) The following day, December 13, 2000, the Borough, via a letter sent by its Counsel, ordered that Cablevision take action to remove the eruv material as soon as possible. (12/13/00 Letter from the Borough to Cablevision, Pis.’ Ex. 13.) The Mayor also called Cablevision on December 13, 2000 and directly asked that the Lechis be removed as soon as possible. (Moscovitz Tr. at 103:19.) This litigation commenced on December 15, 2000. Pursuant to the Court’s temporary restraint entered that day and a series of consent orders extending it, the eruv has remained up pending resolution of this application for a preliminary injunction. D. The Borough Council’s Grounds for Denying the Eruv Application Because only Councilman Sullivan (and to a- much lesser extent Councilwoman Kerge) expressed any rationale for the Council’s denial of the eruv at the December 12, 2000 hearing, the Court must rely primarily on statements made by the Council in their affidavits and during their testimony before the Court. To a lesser extent, statements made by some of the Council members at the two work sessions shed some light on the object of their decisions. Although she did not vote, because the Mayor was an active participant in the events surrounding the Borough’s denial of the eruv application, her expressed opinions on the eruv application are set forth here. During their testimony before the Court, all of the Council members testified that they were not influenced by anti-Sem-itism or anti-Orthodox sentiments when they voted against the eruv application. (Wilson Tr. 62:20-63:1; Peck Tr. 90:19-23; Lipson Tr. 7:7-11; Kerge Tr. 41:20-24; Sullivan Tr. 6:2-6.) Beyond that common ground, all of the Defendants articulated somewhat differing reasons for their denial of the eruv application. 1. Councilman Charles Lipson Councilman Lipson expressed four separate concerns that led to his denial of the application for the eruv. First, echoing what is a popular theme among some Council members, he believes that the construction of an eruv would create a “community within a community.” (Lipson Aff. ¶ 9.) He believes that the eruv would establish a separation within the town of Tenafly, between those who are within the eruv and those who are outside of it. (Lip-son Tr. at 23:20-24.) This would be very disruptive for the town. (Lipson Aff. ¶ 10.) Further, Councilman Lipson believes that the anger and strife within a town that a “community within a community” would create is evident from the tone of the papers filed in this case. (Id.) The second concern voiced by Councilman Lipson had to do with control of the Borough’s right-of-way. In his mind, although many religious groups could find a use of the Tenafly right-of-way for their purposes, Tenafly strictly limits use of the right-of-way. (Id. ¶ 11.) Exceptions to the no-use policy are only allowed after a detailed application is made to the Council, and after a determination is made that the exception would be “good for the town.” (Id.) The Councilman is concerned that if an eruv is