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Beit Midrash Series P'ninat Mishpat

based on ruling (appeal) 76035 of the Eretz Hemdah-Gazit Rabbinical Courts

Chapter 596

Operating a Preschool in a Private Building – part I

2
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Summary of Original Ruling and Appeal: The plaintiffs (=pl) are residents in an apartment building in which their neighbor (=def) operates a preschool program (gan) for two-year olds. Pl complain that this causes noise and disturbances in the building, including making the use of elevators unfeasible at times. Beit din had ruled that the gan could continue for three reasons: 1. The present use of the apartment for a small group of children is within ordinary use approved by municipal standards (up to 10 children in Jerusalem). 2. Even if it were out of the ordinary, special consideration is given to Torah schools, and this applies to ganim as well (it is at least a matter of mitzva). 3. The Chatam Sofer says that necessary business that cannot be run in commercial areas can operate in residential ones; since there are not enough public accommodations for ganim in Jerusalem, residents cannot prevent their neighbor from running a small gan.
P'ninat Mishpat (604)
Beit Din Eretz Hemda - Gazit
595 - Unartistic Material for Artistic Work – part I
596 - Operating a Preschool in a Private Building – part I
597 - Unartistic Material for Artistic Work – part II
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The appeal questions these reasons as follows: 1. According to Israeli law, it is forbidden to have any business in a residential building without a special permit, and the municipality’s turning a blind eye does not change that. In this case, also, neighbors have complained for years, and def has not acted to minimize damage. Also in the past, she exceeded 10 children and it is hard to check if she is now exceeding it. 2. The institution of R. Yehoshua ben Gamla applies only from the age of six, and certainly not under three, and it anyway cannot overrule a local law. 3. The Chatam Sofer applies only when there are no alternatives. In this neighborhood, there are quite a few public buildings, and, in any case, ganim are usually on the ground floor where they are less disruptive.

Ruling: Before addressing each claim, we note that it is enough for one of the reasons to be valid to allow the gan to operate.

1. The fact that many businesses do not apply for a special permit to operate in residential areas is not criminal activity. The phenomenon has been approved by numerous court rulings and Knesset reports. Such publicly approved phenomena determine how to apply the existing laws. They do not apply to small "businesses," such as a gan up to 10 children, as is regulated by the municipality. It can operate now even if def exceeded that number in the past. If a resident suspects def of presently concealing the true number, he can ask the municipality to send an inspector.

2. Pl is correct that the institution of R. Yehoshua ben Gamla does not apply under the age of 3. If Torah needs to be taught at that age, it can be done in a short amount of time out of "school."

3. The logic of the Chatam Sofer is what guides municipalities in setting their standards. Clearly, on a citywide level, there need to be ganim in residential buildings, and it is not always feasible for it to be done on a ground floor. For this reason, the city does not require it. Therefore, the appeal is rejected.

Next time we will evaluate the rules beit din incorporated into running the gan.
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