Unartistic Material for Artistic Work – part II | Beit Din Eretz Hemda - Gazit | Beit Midrash

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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 businesses 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.

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 special allowance for Torah schools 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 many public buildings, and, in any case, ganim are usually on the ground floor, where they are less disruptive.

P'ninat Mishpat (801)

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Ruling: Last time we saw why the ruling that the gan could continue was correct. Now we address guidelines set for it.

We do not want a situation where one acts only according to what he is legally required to do, without concern for the welfare of neighbors. This applies to both sides, but, primarily, def should be sensitive to the suffering of some neighbors from the operation of her gan. Her obligations as an educator begin with educating about concern for neighbors. On the other hand, members of pl must act cordially toward the children and their parents.

The ruling that these visitors not use the elevator and that def should hand out an instruction sheet to parents that include this is correct. However, this does not mean that if there have been a few instances in which parents used the elevator, the gan now must close. Def has proven that she has done as expected of her. This does not include policing unless her request of the parents is being ignored. However, pl’s claims only identify three violations and a claim of maybe one parent a week. If that had been the case originally, presumably the suit would never had been brought.

Pl demand a list of the families in the gan so that they can regulate the number. This is not necessary, as pl are not supposed to be policing; the municipality and the umbrella organization of private gamin to which def belongs should do the regulating.

As long as def is following the rules, she is not obligated to pay for any alleged depreciation in the value of pl’s apartments.

P'ninat Mishpat