Planning and Construction
PLANNING AND CONSTRUCTION
The laws of planning and construction occupy an important place in contemporary public law. This group of laws regulates the status of the various planning authorities, determines norms for the planning of communities, allocates areas for residence, industry and agriculture, establishes various norms regarding the construction of buildings and other facilities within the bounds of a community (such as for residential areas, agricultural regions, nature reserves, and waterside areas), and enumerates various conditions for the maintenance and preservation of buildings and other entities (such as trees, railways, roads, etc.) – especially in cases in which they are liable to cause harm to individuals or to the public.
Although the modern city is notably different from the city of ancient times, the sources of Jewish law over the generations set forth basic principles regarding the regulation of various aspects of planning and construction which are also appropriate – with certain appropriate changes – in contemporary times. In many cases, these principles of Jewish law have been incorporated within other laws, such as *Torts, *Acquisition, public and administrative law (see *Public Authority) and constitutional law (see *Rights, Human: Right to Title), *Unjust Enrichment, etc. Some of the laws of planning and construction were intended to prevent safety hazards, but many were intended to ensure the external appearance of the community, which should be attractive and pleasant for residential purposes. Initially, many of these obligations were specified in the framework of torts regarding private law and created rights and obligations of individuals, but they eventually became public obligations, binding all members of the community.
Thus, for example, it was ruled that commercial installations liable to cause damage to the public should be removed, or built at a safe distance from residential areas (see *Hazard). In many cases, such laws enable individuals to submit claims against others for damage caused to them, or to compel their removal (see *Nuisance).
In other cases, the public aspect of planning law is emphasized. Thus, for example, already in the Mishnah we find the requirement that a cemetery be located at a distance from urban centers (M. bb 2:8), the commentators differed however regarding the reason for that requirement: Some think that in this case, similar to other laws of nuisance, the reason is because of the offensive smell that is prevalent there, but others explain that it was meant to prevent distress to the city residents who might see the place (Rabbi Mordechai Yaffe, Sefer ha-Levush, yd 365). A similar directive was made in Israeli law, which specifies certain areas in which burials may be performed and prohibiting burial elsewhere (Public Health Ordinance; Planning and Construction Law, 5725 – 1965).
Owing to the wish to preserve "the city's beauty" – its external esthetics – a requirement was made to keep certain types of trees far from its borders (M. bb 2:7), for which the Talmud gives the following rationale: because these trees have many branches, and "it is the beauty of the city when there is open space around it" (bb 24b and Rashi, ad loc.). In the Jerusalem Talmud, there were those who explained that the reason for distancing such trees far from the city is that they have many branches, which create excessive shade for the city's residents (tj, bk 2:7). Among the early Sages there were those who limit this rule to inhabited regions in the Land of Israel, where it is obligatory to preserve its beauty, while others extend it to include cities abroad as well (Ramban, Rashba and Ritba, on Bava Batra, ad loc.). Rashba, in his novellae (to bb 24b), set an important rule, according to which "Anything that has to do with aesthetics cannot be waived by the residents"; in other words, this is a mandatory rule having the character of jus cogens, being intended to maintain "the city's beauty," and therefore cannot be made a matter of their discretion.
The rules concerning the "city's beauty" were especially enforced in those cities given to the Levites, and this dictated their explanation of the biblical rule (Num 35:5), compelling one to leave an empty "plot" around the Levite cities. Rashi (Sotah 27b) interprets the rationale for this by saying that they wished to leave open space on the edges of the city, to leave "an expanse empty of sowing and houses and trees for the sake of the city's beauty, and to provide air for it." From other sources, it emerges that this empty space surrounded the town from all sides, and measured 1000 cubits (approximately 500 meters) in each direction. See Targum Onkelos to Num. 35:4–5; and Rashi to Eruvin 56b, s.v.ẓe'i mehen).
Another law stated with respect to the levitical cities prohibits changing the land's designation. Already in the Tosefta (Arakhin 5:18) we read that "A plot should not be made into a field, and a field should not be turned into a plot." Rashi explains this (Arakhin 32b) with the rationale: "A plot should not be made into a field – because of [the imperative] of settling the Land of Israel, and this would be devastating, for it reduces sowing [the areas available for sowing]; and a field should not be turned into a plot – because it ruins the town's aesthetic appearance." In other words, the desire to maintain certain agricultural areas, as well as concern for the town's aesthetic appearance, requires the avoidance of changing the land's designation. Similar norms were set in Israel's Planning and Construction Laws.
Special rules were fixed for the *City of Refuge, which served as the place of residence for persons who had accidentally committed manslaughter. Although Jewish law does not generally establish criteria regarding urban density and the location of cities, this indeed was inter alia the rationale of the rule that the various cities of refuge should not be too close to one other but rather scattered at equal distances (Tosefta Makkot 3:3). The Tosefta (ibid., 8) further states that: "These three towns [= Cities of Refuge] should not be built either as large cities or as small villages, but rather as medium-sized towns. They should not be built in places where there is no water. If there is no water there – water should be brought there. And they should not be built in places that are uninhabited. If the population has dwindled – other inhabitants should be brought and settled there instead of those who left. If their residents have dwindled – then priests (Kohanim), Levites and [ordinary] Israelites should be added to them." The Jerusalem Talmud (Mak. 2:6) adds that "If there is no market there, then one should be set up" – all in order that the person who accidentally committed manslaughter and finds refuge there should be able to live a normal life. Nevertheless, in order to prevent blood avengers from getting into the habit of coming to these towns, the practice of certain crafts – such as operating an oil press and producing oil, manufacturing glassware, rolling cords, and similar crafts – was forbidden in those towns (Tosef. and tj, ad loc., and see *Human Rights: Freedom of Occupation).
Laws of this nature were also applied to the building of the Temple, such as the prohibition on building it during the night hours and the obligation to build it only from materials that were originally designated for this purpose (Yad., Beit ha-Beḥirah). Various limitations on construction works were imposed on special occasions. In addition to Shabbat and holidays, in the ancient sources construction was also prohibited on fast days, such as public fasts, and from the beginning of the month of Av until the 9th of the month, which is a period of mourning (Ta'anit 14b). In the later sources this prohibition was qualified and limited only to "building for the sake of joy." Rambam explained (Commentary on the Mishnah, Ta'anit 1:7: "planting for joy" (such as drawings and ornaments) refers to special buildings the wealthy make, or aromatic trees and so on planted by kings, but building for residence, and planting for the sake of fruits and for making a living, is not forbidden and is not prevented at all. The Jerusalem Talmud explains that if a building was about to collapse, it is permitted to rebuild it even in such times (tj, Ta'anit 1:8). During the Intermediate Days of Festivals construction work was prohibited as well. The Tosefta cites an exception to this rule (Tosef. Mo'ed Katan 1:7) regarding a house that is liable to endanger its residents: "Should its wall be tottering on the brink of collapse into the public domain, then it should be toppled and rebuilt because of the risk to life." The same rule applies in those places where there are other dangers: "If the city walls have been breached – then it should be fenced off. If it has been fenced off and breached – then it should not be fenced off further. If it was close to the frontier [= border] – then it should be demolished and rebuilt in the usual way."
The sources of Jewish law indicate that certain institutions were originally built in certain locations. Thus, for instance, from many biblical sources we learn that the Court used to sit at the city gates, to enable convenient access. In the Midrash (Pesikta Zutrata, Lekaḥ Tov, Ki Teẓe) it was even taught that it is mandatory, and not merely a directive to be exercised voluntarily, that the Court sit at an the highest spot in the city.
A special norm was fixed regarding the construction of synagogues as well. As early as the Tosefta (Megillah 3:22–23) it was already stated that "The doorways of Synagogues are to be opened only towards the East, because in the Sanctuary the doors opened towards the East," and that "Synagogues are only to be built in the highest place in the city." However, as early a source as Rabbenu Tam (12th century) already qualified this law, stating that it had been applicable specifically in ancient times, "when people were accustomed to residing on and using the roofs, but in our times this prohibition should be qualified." At any rate, he too prohibited the construction of an apartment on a floor that was higher than the synagogue (Shabbat 11a, and Nov. Ritba ibid.). Testimony from medieval Jewish communities shows that, in certain cases, it was decreed that synagogues should be elevated or houses that were built at higher levels should be lowered (Hagahot Maimoniyot, to Hilkhot Tefillah 11:2; Sh. Ar., oḤ, 150, and Rema ad loc., 3, and Arukh ha-Shulḥan, oḤ 150). During the period of the aḥaronim and certainly in modern times, when synagogues are frequently built in multi-storey buildings, various dispensations were made for this issue as well. For example Rabbi Joseph Caro cites Rabbi Jacob Ibn Habib – "In our times, when we are under Turkish rule, that we are not permitted to establish a permanent house for a synagogue; all the more we are not permitted to build one, and we are obliged to hide ourselves in low buildings, where the sounds [of prayer] are not to be heard because of the danger involved. Accordingly, even if there is a residential house above the house in which we customarily pray, this is not to be protested, on condition that they maintain cleanliness in the houses that are above the house of prayer." (Beit Yosef, oḤ 154; and see the Rambam's responsum in Resp. Pe'er ha-Dor 74; Magen Avraham, oḤ 150:2; and compare Rabbi Ben-Zion Ouziel, Resp. Mishpatei Ouziel, vol. 3, oḤ 19, and R. Ovadiah Yosef, Resp. Yabi'a Omer, vol. 6, oḤ, 26).
As a remembrance of the destruction of the Temple, it was enacted that when a person plasters his home, he should leave a certain area unpainted in remembrance of the destruction of the Temple (Tosef. Sotah 15:12; Tur, oḤ 560).
Other halakhot determine the need to distance one residential building from another for the sake of maintaining privacy (see *Rights, Human: the Right to Privacy). This halakhah is rooted in ancient sources. Commenting on the biblical verse (Num 24:2), "And Balaam lifted up his eyes, and he saw Israel dwelling tribe by tribe; and the spirit of God came upon him," the Sages remarked: "He saw that the openings [of their tents] were not facing each other, to prevent one person from looking into his neighbor's tent (Rashi, ibid.; bb 60a). Accordingly, the sages stated in the Mishnah (bb 3:7) that "In a courtyard which he shares with others, a man should not open a door facing another person's door, nor a window facing another person's window. If it is small, he should not enlarge it, and he should not turn one into two. On the side of the street, however, he may do so," because there, there is no risk that someone's privacy may be infringed
In all these rules, important status was granted to "the prevailing practice in that place" (see *Minhag), on condition that it isn't a "foolish practice" or a "mistaken practice." And thus, the Rashba (Rabbi Solomon Adret, Spain, 13th century), in his important responsum on the status of custom in Jewish law (Resp. Rashba, vol. 2, no. 268) wrote: "And we also learn from the custom of the land, even though it has not been [formally] agreed. As we have learned (M. bb 1:1): "In those districts where it is usual to build using unhewn stone, hewn stones, beams, or bricks, they must use such materials, all according to the custom of the district." And they explained: "Everything – including a light partition, made of thatch and straw," but he adds: "At any rate, if the custom was not to be particular at all with respect to the injury of visual trespass [into] homes and yards [= which damages the neighbor's privacy, see entry: *Damages], then this is a mistaken practice, and is not a [correct] custom. Because a person cannot waive his rights, except with respect to finances, of which a person is entitled to give of his own, or to sustain damage to his property. But he is not entitled to breach the fences [= prohibitions] of the Jewish people, and behave immodestly."
Special provisions of the Israeli planning and construction laws prevent a person from making changes in his house (such as closing a balcony or building an annex) without receiving a permit from the local committee for planning and construction. Similar principles exist in various provisions of Jewish law, as well as in local regulations for public welfare (see *Takkanot ha-Kahal). The main principle was based upon the words of the prophet Jeremiah: "Woe unto him that builds his house by unrighteousness, and his chambers by injustice" (Jer 22:13). In other words: even a person building his own house must do so in accordance with principles of justice and law. In later generations, the Sages used this verse as a basis for various rulings with respect to planning and construction. Thus, for instance, the Italian sages stated that a person is not entitled to make changes to a house in his possession if his neighbors' rights to light and air would thereby be compromised (see, for instance, Resp. Haramaz of Rabbi Moses Zacuto, no. 37).
Other provisions of modern planning and construction laws require a person to demolish unstable buildings, which endanger their surroundings. A similar provision may be found in Jewish civil torts law. Already in the Mishnah it states that in such cases, "the Court determines a period of 30 days during which the owner of the property must demolish the unstable building, and if he does not do so, he will be charged with any damage that may be incurred as a result" (M. bm 10:4; Yad., Nizkei Mamon 13.19; and see Resp. Rashba, vol. 4., no. 114).
Various laws were legislated in the Mishnah and the Talmud, with respect to construction below the surface of the ground, intended to prevent hazards from the public. Thus, it is stated in the Mishnah (bb 3:8) that "It is not acceptable to make a hollow space under the public domain, such as pits, a trench or a cave," while Rabbi Eliezer allows making a cavity under the public domain, provided that it is provided with a sufficiently strong covering to bear the weight of a wagon laden with stones passing over it." And it is further stated in the Mishnah (ibid.) that "one must not make beams and balconies that protrude into the public domain unless one chooses to do so by withdrawing into his own area, and then the protrusions can be contained within his own area." The Talmud cites an opinion that qualifies this law, adding that if the protruding beams are higher than "a camel and its rider" – that is, in a sufficiently high place so as not to cause a disturbance to passers-by, then it is allowed. Indeed, Ritba, who was asked about this matter, rules that in places where "it was not customary" to have protruding beams, even if they are much higher than "a camel and its rider," they should not be extended (Resp. Ritba 125). However, in places where a custom existed to allow this, one cannot protest against a person who does so, and in certain cases he even acquires possessory rights (*Ḥazakah) and cannot be compelled to demolish what he has built (Resp. Rosh, 99:6).
Due to its unique character and status, special laws were made for *Jerusalem. Thus, for example, it was determined that in this city, even within private property, a person is barred from building with beams that protrude from the walls, or balconies or pipes that project into the public domain, because they are liable to contaminate or cause other harm to the pilgrims who come to the city (bk 82b; Tosef., Nega'im; Avot de-Rabbi Nathan, 35; Yad., Beit ha-Beḥirah 7:14; Resp. Rashba, 125). It was similarly prohibited to plant "gardens and orchards" within the city of Jerusalem, and trees should not be planted there, apart from "a rose garden that had been there since the days of the former prophets" (bk and Rambam, ibid.). This was decreed in order to prevent the fertilizing of the fields with manure, which creates an offensive odor, which would be liable to lead to the city's becoming "repulsive to the pilgrims and to all those who come to it from all over the land" (Responsa Radbaz, vol. 2, 633). Likewise, "kilns are not to be made in Jerusalem" – i.e., lime kilns for pottery – because the smoke blackens the city walls, which would be a disgrace, as it has been said of Jerusalem that it was the "paragon of beauty." Others interpret the reason for this rule so as to prevent the smoke from blackening the walls of the Temple (bk 82b; Rashi and Shitah Mekubbezet, ad loc.; Ḥaggigah 26a; Zevaḥim 96a; Yad., Beit ha-Beḥirah 7:14). It was further stated that "cemeteries should not be built within the boundaries of Jerusalem, apart from the tombs of the House of David and that of the prophetess Huldah, which have been there since the time of the earliest prophets" (Tosefta, Avot de-Rabbi Nathan, ibid. and Rambam, ibid.). Indeed, Radbaz (Rabbi David Ben Zimra – a rabbi in Egypt and the Land of Israel during the 16th century) wrote that during these times, when the Temple was not standing, and the laws of uncleanliness and purity no longer prevailed there, this prohibition was no longer in effect (Resp. Radbaz, vol. 2. 635).
A special chapter on the laws of planning and construction relates to compensation of a landowner who has suffered damage due to the change of designation or expropriation of his property (see, for example, Sections 188–197 of the Planning and Construction Law, 5725 – 1965, and the Lands Ordinance (Acquisition for Public Purposes), 1943). This principle complies with the values of a Jewish State, which require that landowners be given compensation even when the damage to his rights in the land is justified due to an opposing public interest, such as in cases of expropriation of the land for public purposes. The compensation can be monetary, in the manner ruled by Rambam (Melakhim 4:6) with respect to the king's right to expropriate land: "and he takes the fields and the olive trees and the vineyards for his slaves when they go to war … and gives their value [in money]" (see Hacohen; and *Rights, Human: Right of Acquisition), or by way of providing alternative land, in the manner that Ahab proposed to Naboth the Jezreelite (i Kings 21:2).
In the State of Israel
In Israeli law, the laws of planning and construction were regulated by a system of laws, the most important of which is the Planning and Construction Law, 5725 – 1965. Other laws establish various qualifications regarding the location of commercial and industrial facilities in residential areas, such as the Business Licensing Law, the Abatement of Nuisances (Noise and Pollution) Law, and municipal by-laws.
In several cases, the Israeli courts have found support and remedies from the sources of Jewish law for matters concerning planning and construction laws that they adjudicated. For example, one case dealt with the municipality's obligation to demolish an unstable structure (ca 2904/92 Tel Aviv Municipality v. the Estate of the Deceased Leterhaus, pd 50 (1) 754). Justice Tal cited the position of Jewish law, according to which one must distinguish between an unstable building that does not present an immediate danger, in which case the court is obliged to caution the owners and give them time to demolish it, and one that poses immediate danger. Thus, it is stated in the Shulḥan Arukh: "The wall and the tree … if they are unsound, the court gives him time to chop the tree and to demolish the wall. And how much time? Thirty days" (Sh. Ar., Ḥm 416: 1). The Rema, in his gloss on this passage, adds that "A time is set for him – only when the court has forewarned him. But without there having been a court [warning], even though his friends have cautioned him, it is considered as nothing … and if it is necessary and there are grounds to assume that it might harm others, then he should not be given time, and he is forced to remove the impending menace immediately."
In another case, the Supreme Court deliberated over the rights of demonstrators to demonstrate in a public area, while causing a nuisance to neighbors [ca 3829/04 Israel Tuito, Chairman of Mikol Halev, Kikar Halehem, The Association for Reducing Social Disparities in Israel, et al. v. Municipality of Jerusalem; (unpublished). Justice E. Rubinstein ruled that even the right to freedom of demonstration (see *Rights, Human: Freedom of Expression) is not unlimited, and should be prevented when its damage to the public is greater than its benefit. He found support for this ruling, inter alia, in the above-cited talmudic ruling, according to which the prohibition against of beams and balconies that protrude into the public domain does not apply when they are "higher than [the height of] a camel and its rider."
The Supreme Court likewise referred to the sources of Jewish law when it determined the obligation of the Local Planning and Construction Committee to avoid expropriating land areas from their owners unnecessarily and to compensate the owner in cases in which he incurs harm as a result of its actions (hc 2390/96 Karasik et al. v. the State of Israel, 55 (2) pd 625). In order to establish the landowner's proprietary rights, Justice Heshin referred, inter alia, to the biblical story of Ahab and Naboth the Jezreelite, which is discussed extensively in the sources of Jewish law. In another case (ca 8989/04, Petach Tikva Local Planning and Construction Committee and others v. M. Zitman and Sons Ltd.; unpublished), Justice. Rubinstein refers to the words of Chief Rabbi Ben Zion Meir Hai Ouziel, who wrote in connection with a similar matter on the eve of the establishment of the State of Israel:
"Proposals for the Constitution of the State of Israel," in which it was stated, among other things, that "The State of Israel recognizes its obligation to protect all private and public property owners by their own acquisition or by inheritance, and denies the right to expropriate private or public lands in favor of the government if it is not located in a place where it is necessitated by public needs. And even in such cases, no land shall be expropriated save at its full price or in exchange for other similar land" (quoted in Rabbi Isaac Halevi Herzog, Constitution and Law in the Jewish State, vol. i: Administration of Rule and Justice in a Jewish State [Hebrew], ed. I. Warhaftig, 251).
A special section of the Planning and Construction Law determines limits to injury and prohibits the destruction of buildings that have been designated for preservation due to their historic value (Section 76 and the Fourth Supplement to the Planning and Construction Law, 5725 – 1965). Similar provisions also exist in Jewish law with respect to the prohibition on damaging holy sites. Thus, for example, a prohibition was imposed on breaking one stone of the Temple, and it was prohibited to unnecessarily demolish a synagogue. This issue was deliberated in the Supreme Court, in the context of demolishing synagogues in *Gush Katif in wake of the disengagement plan of 2005, and Justice E. Rubinstein referred extensively to the sources of Jewish law when deliberating the matter.
The rabbinical courts, too, are occasionally required to address the laws of planning and construction, such as the question of whether a neighbor can force his neighbors to consent to additional construction in his apartment.
M. Elon, Ha-Mishpat ha-Ivri (1988), 879–80; idem; Jewish Law (1994), 1073–74; Enẓiklopedyah Talmudit, 10:666–671; 25:304; Y. Ariel, "Piẓẓuyim al Hafka'at Karka'ot," in: Emunat Etekha, 25 (1999); Y.S. Blass, "Piẓẓuyim Mifga'ei Mamon u-Sevivah," in: Teḥumin, 19 (1999); A. Hacohen, "Ve-Khi ha-Rabbim Gazlanim Hem? Al Hafka'at Mekarke'in u-Pegi'ah bi-Zekhut ha-Kinyan be-Mishpat ha-Ivri," in: She'arei Mishpat, 1 (1997), 39–54; idem, "'Ma-Nora ha-Makom ha-Zeh' – Mekomot Kedoshim: Bein Dat, Misphat u-Kedushah," in: Sha'arei Mishpat, 3 (2003), 247–79; H.S. Shaanan, "Ḥiyyuv Dayyar le-Haskim le-Tosefet Beniyyah shel Shekheno," in: Teḥumin, 19 (1999), 60.
[Aviad Hacohen (2nd ed.)]