(2008/5768)
This week, we shall present a decision issued in 1982 by the Ashdod District State of Israel Beit Din. The Beit Din consisted of three Dayanim, each of whom rose to prominence in the Beit Din in Israel: Rav Shlomo Dichovsky, Rav Masood Elchadad, and Rav Yaakov Eliazoroff. The third volume of Techumin presents the opinions written by each of the Dayanim in the case. We shall present the conflicting views of Rav Eliazoroff and Rav Elchadad and then the deciding opinion written by Rav Dichovsky, the Av Beit Din (chief justice) of the tribunal.
The case involved a dentist who opened a dental clinic in an apartment building. The plaintiff, a neighbor in the apartment building, objected to the disturbance caused by the many patients entering and exiting the clinic. He also voiced concern that the clinic would devalue his property, since higher value is attached to property located in a quiet and peaceful location.
Background – Gemara, Shulchan Aruch, and Teshuvot Tzitz Eliezer
Some background information is necessary to help us understand the basis of the rulings. The Mishnah (Bava Batra 20b) teaches that if someone wishes to open a store in a residential area, the residents may prevent the opening of the store with the claim that they cannot sleep due to the noise generated by the people entering and leaving the store.
The Gemara (Bava Batra 21a) adds that if one of the members of a residential area wishes to open a medical or bloodletting practice in the area, the neighbors may prevent him from doing so. Rashi (ad. loc. s.v. Rofei) explains that the “medical practice” in question is that of a Mohel. The Shulchan Aruch (Choshen Mishpat 156:1) codifies these rulings as normative Halacha.
However, the Gemara (Bava Batra ad. loc.) presents an exception to this rule. The Gemara rules that a Rebbe may teach Torah to children despite the neighbors’ objection to the noise generated by the children. This exception is made due to public policy considerations, which strongly favor maximizing opportunities for Jewish children to study Torah. The Shulchan Aruch (C.M. 156:3) codifies this rule and adds, based on the Tur (C.M. 156), a sweeping generalization: “The same applies to all Mitzvah matters; neighbors may not object.” The Tur’s examples of Mitzvot are distributing Tzedakah and convening a Minyan to daven.
Two premier commentaries to the Shulchan Aruch, the Sema and the Taz, note the apparent contradiction in the rulings of the Shulchan Aruch. On one hand, the Shulchan Aruch asserts that neighbors cannot object to the establishment of a Mitzvah enterprise in their midst. Accordingly, why does the Shulchan Aruch recognize the right of neighbors to object to a doctor serving as a Mohel in their midst?
The Sema (C.M. 156:3) attempts to solve the problem by explaining that the Shulchan Aruch refers to a conventional doctor, not a Mohel. The Taz (C.M. 156:1), however, notes that a conventional doctor also performs a Mitzvah by healing his patients (see Rambam in his commentary to the Mishnah Nedarim 4:4). The Taz solves the inconsistency of the Shulchan Aruch’s ruling by distinguishing between a Mitzvah that “depends on the gathering of people,” such as the Minyan and Tzedakah distribution center mentioned by the Tur, and a Mitzvah where the service provider “can go to the homes of the people he is servicing,” such as a Brit Milah. The latter can be objected to, while the former cannot.
The Aruch HaShulchan (C.M. 156:4), in turn, resolves the contradiction by explaining that the doctor referred to in the Shulchan Aruch is one who teaches others the art of medicine, which technically is not a Mitzvah. However, a doctor who treats patients is permitted to open a clinic in a residential area over the neighbors’ objections. Based in part on the Aruch HaShulchan, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 10:25:30) permits a doctor to open a medical clinic in a cooperative apartment building despite the objections of many of the building’s residents.
Rav Eliazoroff – The Dental Clinic Must Go
Rav Eliazoroff, based on three considerations, ruled in favor of the neighbor who objected to the dental clinic. He notes that Rav Waldenberg’s ruling enabled the community to receive affordable health care. In this case, though, since the dentist already had an office elsewhere, there was no compelling reason to permit the dental clinic to operate in a residential area.
In addition, Rav Eliazoroff cites the Chatam Sofer’s (commentary to Bava Batra 20b) resolution to the contradiction in the Shulchan Aruch. He distinguishes between a doctor who treats life-threatening illnesses and a doctor who does not treat life-threatening illnesses, such as the bloodletter specifically mentioned in the Shulchan Aruch as one about whom neighbors may object. Rav Eliazoroff argues that a dentist is analogous to the Shulchan Aruch’s bloodletter in this context, since most dental care does not involve treatment for life-threatening situations. Thus, Rav Waldenberg’s ruling regarding a doctor is not relevant regarding a dentist.
Finally, Rav Eliazoroff notes the civil zoning laws that designate certain areas as residential and other areas as commercial (or both). The area where the dental clinic was located was zoned as a residential area, and one cannot open a commercial enterprise in such a place without receiving a variance from the local municipality. Rav Eliazoroff writes that the Ashdod municipality responded to his inquiry into this matter and stated that “it is reasonable to assume” that the zoning board would not grant the variance if neighbors object. Rav Eliazoroff cites Rav Yosef Shalom Eliashiv, one of the generation’s leading Halachic authorities, as permitting neighbors to voice such objections to the municipal authorities. Rav Eliashiv is cited as believing that zoning regulations establish a local custom, and people move into an area with the expectation that the local custom will prevail. Rav Eliazoroff also cites Teshuvot Devar Avraham (1:29), who rules that Halacha honors the civil regulation regarding the space that is required to exist between two houses. Accordingly, since the zoning laws in all likelihood would forbid the dental clinic, Rav Eliazoroff feels that Halacha should forbid it as well.
Rav Eliazoroff concludes that according to both Halacha and civil law, the dental clinic must relocate. However, he suggests the following compromise: allow the dentist to remain in the apartment until the end of his lease, while in the meantime making maximum effort to minimize the disturbance caused by his patients.
Rav Elchadad – The Dentist May Stay
Rav Elchadad, though, argues that public policy is in favor of this dental clinic, since it was located in a Chareidi neighborhood and maintained separate hours for men and women, in harmony with Chareidi values. Such separation was not available at the dentist’s other office or anywhere else in the town and thus constituted a “Mitzvah matter,” which the Shulchan Aruch rules overrides the neighbor’s objections. In fact, Rav Elchadad writes that he consulted Rav Eliashiv about this specific situation and was told that the establishment of separate hours for men and women constitutes a great Mitzvah and justifies this dental clinic’s remaining open despite the neighbor’s objections. Thus, even though the dentist is not providing life-saving treatment, neighbors may not object to the opening of the dental office in this particular circumstance. Rav Eliashiv, however, required the dentist to indemnify the neighbor for the decrease in his property’s value.
Moreover, Rav Elchadad points to a distinction between the civil law endorsed by Teshuvot Devar Avraham regarding space between houses and zoning regulations. The fact that it is only “reasonable to assume” that the municipality will honor the objection of the neighbor demonstrates that these laws are not absolute and that much room is left to the discretion of the local zoning board. In such a case, Torah law should prevail, since we rule based on civil laws only if they apply in all circumstances and do not depend on the judgment of a panel (see Sema C.M. 369:21). Since there is a compelling Torah reason to allow the dental clinic to operate in a residential area, the neighbor’s complaint should be ignored.
Rav Dichovsky – The Dentist Must Go
Rav Dichovsky, as the chief justice of the panel, cast the deciding vote in favor of the neighbor who objected to the dentist’s presence. He focuses on the aforementioned distinctions of the Sema and the Taz. He believes that the Sema adopts the Chatam Sofer’s distinction between a doctor who provides care for life-threatening illnesses and those who care for non-life-threatening illnesses. Rav Dichovsky writes that he consulted a prominent dentist, who informed him that dental work that deals with life-threatening issues is not handled by an ordinary dentist but rather by a specialist, such as an oral surgeon. Thus, neighbors may object to the presence of an ordinary dentist in their midst.
Moreover, he interprets the Taz as teaching that neighbors’ objections are ignored only for an enterprise whose Mitzvah involves by its very definition the gathering of a group of people, such as teaching children Torah, prayer, and Tzedakah distribution (which requires the presence of three; see Bava Batra 8b and Shulchan Aruch Y.D. 256:3). Thus, since dental care is not a Mitzvah that involves by its very definition a gathering of people, Halacha sustains the neighbor’s objections to a dental clinic’s presence in a residential area. Rav Dichovsky writes that according to this understanding of the Taz, neighbors may object to the opening of a medical clinic, leading him to question the ruling of Rav Waldenberg that they may not.
Rav Dichovsky adds the crucial point that only those activities whose primary purpose is for a Mitzvah justify ignoring a neighbor’s complaint. Since the dental clinic’s primary purpose is to provide dental care and not to avoid inter-gender mingling, opening the dental clinic does not constitute a Mitzvah that justifies ignoring a resident’s complaint. Rav Dichovsky presents a reductio ad absurdum argument, stating that if Rav Elchadad’s reasoning were correct, Halacha should justify opening any business in a residential area if the proprietor offers Torah literature instead of ordinary periodicals for customers to read in the waiting room.
Interestingly, Rav Dichovsky does not address the application of the Dina DeMalchulta Dina principle in regard to civil zoning laws. This is particularly interesting in light of the fact that Rav Dichovsky has at times argued for the Halacha’s recognition of certain elements of civil laws, such as civil community property laws, as he writes in essays that appear in volumes eighteen and nineteen of Techumin. Hence, it would seem that one should consult his Rav before invoking civil zoning laws to object to the establishment of an endeavor involving a “Mitzvah matter.”
Although one may find it shocking that Rav Dichovsky disagrees with the rulings of two leading contemporary authorities, Rav Waldenberg and Rav Eliashiv, this is not unusual practice for Rav Dichovsky. He possesses great knowledge, keen analytical ability and is regarded as a Dayan of eminent stature.
Conclusion
Rav Dichovsky rules in favor of closing the dental clinic in the residential area. However, he notes that since the parties to this dispute signed an arbitration agreement authorizing the Dayanim to rule in accordance with both Halacha and Pesharah (equity), Rav Eliazoroff’s approach that “it is proper” to wait until the completion of the dentist’s lease before evicting him should be followed.
I would add that in light of the current absence of undisputed Halachic guidelines in the area of monetary law, the application of Pesharah in this instance is entirely appropriate. How can one fault the dentist for opening a practice in a private area if he believed that rulings of the Aruch HaShulchan and Tzitz Eliezer sanctioned this venture? Thus, the Beit Din acted appropriately by easing the terms of implementation on the dentist despite the fact that it ruled against him. We look forward to a time when Mishnah Berurah and Halacha Berurah (clear Halachic guidelines) will be restored to our people.