Bais Havaad halacha journal: Mall Melee, the shopping mall contreversy

            What is a community’s recourse to prevent nearby development? a Halachic discussion by the
 Bais Havaad Halacha Journal :
-The validity of secular regulation in halacha
-Fighting the development in the township zoning or planning board

Thehalachacenter.org- A quiet, residential neighborhood, a mini-community of seniors to whom a tranquil pace of life is of paramount importance, is facing a threat to its tranquility.

A real-estate developer seeks to establish a monstrous shopping mall directly adjacent to the main entrance to the neighborhood. Emotions run high, the controversy generates daily fodder for the gossip beast, and many outsiders keep their fingers on the pulse, anxious to see how things will play out.

Both the developer and the community are observant Jews. What recourse does this community have according to halacha? Does the developer have the halachic right to develop? In what forum may the community litigate to prevent the development?



The validity of secular regulation in halacha
If we were to examine the halachos pertaining to such building, there is very little in the strict halacha that can be brought against such a development. (There is a broader authority that a bais din occasionally reserves for itself, which include mandated "peshara" (compromise) or "tzedek v'yosher" (fairness and propriety), but this would depend on the individual bais din's practices regarding such areas.)

However there is a halachic argument that can be made for the community.

The Chasam Sofer 1 writes concerning laws of unfair competition "the regulations that the ministers of the Comidat created are not against the law of the Torah, but they have done like the Torah, and, had they come before us, we too would create such regulations…"

What the Chasam Sofer seems to imply, is that there are certain laws that are not statutes, but are created by ministerial authority of the particular government body to regulate their respective area in an efficient manner. Such regulations do not stem from any ideological or moral source, which would place them in a category competing with the ideological bedrock of the Torah; rather, they have been created for regulatory purposes, for the sake of maintaining functional and practical community life.

To understand this concept more deeply, there is a concept in Halacha as well, of takanas hakehillos (community enactments). This concept is found in numerous places in the Poskim, but a teshuva of the Rashba2 seems to concretize and define the broad parameters of this halachic machination:

"You asked: May the community create legislations, treaties and barriers among themselves, and penalize and punish because of their treaties, beyond the law of the Torah, or not? … Answer: It is clear that a community may create barriers and create legislations and treaties, as they see fit, and it is valid as the law of the Torah. They may penalize and punish whoever transgresses anything that they have agreed upon among themselves, provided that the entire community, without dissent, agrees to such..."

What the Chasam Sofer seems to imply is that the halachic recognition of takanah, of communal self-legislation, may be extended to the halachic recognition of legislation that has already been enacted by secular leadership, in the case of legislation that serves in lieu of the religious community's legislating. Since the community itself clearly would have legislated such laws had they not existed, these laws receive the validity of takanas tzibbur.

In light of this, we may want to examine a case of legislation that a modern self-governing Torah-observant community created for itself.

In the all-Jewish village of Kiryas Joel, the rabbinic leadership (Rav Aharon Teitelbaum and Rav Getzel Berkowitz) issued a letter3, effectively criticizing the residents who ignore the building codes and are not considerate of the fact that damages can result from such practices, and informing the public that the rabbis "sat on seats of judgment and after proper analysis we decided to empower those who have been appointed by the management of the township as building inspectors, to carry out their instructions for the good of the city concerning building of the houses, the courtyards, and the porches, that they should be according to the law of the country, and they have power and authority to prevent building if they see that it is important to do so, or other improvements in the order of driving of cars and the like…"

It is clear from this case, as should be obvious by rational analysis, that a self-governing Torah-observant community living in the current era would enact legislation that would far more resemble the by-laws and ordinances of zoning and city planning than it would Hilchos Nizkei Sh’chainim of the Shulchan Aruch.

Accordingly, the argument can be made that the Chasam Sofer's ruling should apply in this case. Although the Halachos of Nizkei Sh'chainim would not prevent the developer from building a monstrous mall near the quiet senior community, the developer should be required by Halacha to follow zoning and city planning laws.

• Fighting the development in the township zoning or planning board

A Jew is forbidden from litigating against a fellow Jew in a secular court,⁴ barring certain circumstances sanctioned by a bais din.⁵ In addition, a Jew may not use the force of a non-Jewish entity to extort money or monetary privileges from a fellow Jew. This would constitute the serious transgression of mesirah.⁶

In cases such as these, the secular forum for such a claim would be in one of the various boards in the township that deal with matters of city planning and building safety, i. e. the zoning board or the planning board. According to halacha, may the residents use any of these forums to complain about, and thereby attempt to thwart, such a development?

There is a strong argument to make on behalf of such a move.

If the developer requires permits in order to proceed with developing, and his opponents are attempting to prevent the issuing of these permits, there are a number of poskim who allow this. The prohibition against mesirah only includes property that a fellow Jew already owns, but preventing a Jew from gain is not prohibited by mesirah. Since the property itself has a totally different value after the permits have been issued, evidently this is not a case of preventing a Jew from utilizing his own property, but of preventing him from gain of an asset that he has not yet attained.⁷

see footnotes and more at the Bais Havaad website