Principles for Removing Modern Nuisances

Following are several applicable principles:

4.1. URBAN ENVIRONMENTAL PLANNING29

Serious ecological nuisances will be removed from the town up to a distance from which they will no longer cause harm. Town planning should include the allocation of industrial areas located at a distance from town, to ensure that industrially related activities will not take place within city bounds.30 Cottage industry can

28 Nachmanides (Spain, thirteenth century), in his commentary on Deuteronomy 22:6, acknowledged the possibility that man could bring about significant changes to Creation: "This too is a commandment prohibiting the killing of an animal and its young on the same day. Alternatively, the text prohibits the extinction of an entire species, even if it permits slaughter of animals within a given species. One who kills the mother and her young on the same day or captivates them when they are free is considered as if he had eliminated an entire species." In this statement, Nachmanides undoubtedly was ahead of his time, since in the Middle Ages there was no technical scientific ability to foresee how mankind's actions could indeed harm nature. Many suppose that the notion that human activity could affect nature was first conceived of in the nineteenth century, with the publication of the essay by George Perkins Marsh, "Man and Nature," in 1864. See Botkin DB (1990) Discordant harmonies: a new ecology for the twenty-first century. Oxford University Press, Oxford, p. 32.

29 Glicksberg S (2001) The attitude of Jewish law to public nuisances. M.A Thesis, Touro College, Jerusalem, pp. 9-52; Zichel M (ed) (1990) Ecology in Jewish sources, Bar Ilan University, Ramat Gan (Hebrew), pp. 87-104.

take place within town, but adequate distance must be maintained from residential homes.31 These distances will be determined by experts, who will set regulations on this matter.

The aesthetic appearance of the town should be strictly kept,32 including open spaces surrounding the town. Even stricter regulations will be maintained concerning towns with a public standing like Jerusalem.

However, prevention of existing nuisances is not enough. One should also plan the prevention of potential nuisances which could evolve in the future into serious hazards.33

4.2. SCIENTIFIC CRITERIA IN IDENTIFYING AND LOCATING A NUISANCE

The process of identification and assessment of hazards and their damage is a Halakhic-legal process, which can be learned from studying the various Mish-nayot, the commentators on them and the decisors following them. This process can be incorporated into the management of modern-day hazards, including some "global" hazards.

A number of stages can determine whether the removal or prevention of a certain nuisance is effective or not. The process is as follows34: First, the nuisance must be identified as one that the Sages or Poskim would have acted upon to prevent. Even when it comes to modern nuisances which are not specifically mentioned in the texts, experts (using scientific criteria) can possibly characterize them as such.35 Activity deemed by expert opinion as hazardous will be distanced or prohibited altogether.

A subsequent stage consists of the assessment of the severity and extent of damage, since not all activity levels or dosages are actually hazardous. This examination will also be made according to expert opinion.36 The next stage will be to determine the distance to which the nuisance will be distanced, if at all, also according to expert opinion.37

32 The definition of aesthetics will change according to time and place. See, Glicksberg, Moed, pp. 1-11.

33 Bava Batra 17b; Maimonides, Mishneh Torah, Laws of Neighbors, Chapter 9, Halakha 10.

34 For detailed discussion, See, Glicksberg, Ph.D. Dissertation, pp. 222-246. (n. 11).

35 Thus, for e.g., in Responsa Tziz Eliezer, 15:39, which prohibits cigarette smoking, following his review of scientific findings, from which he learned that cigarette smoking indeed was a health hazard.

36 Responsa Ribash (Rabbi Isaac bar Sheshet Barfat), 196; Responsa Tashbetz (Shimon Ben Tsemah Duran), 4:57.

37 The Rama (Rabbi Moshe Isserles), Choshen Mishpat 155:20.

Occasionally, legal obstacles could be placed before the removal of a nuisance, as when its owners have legal rights due to precedence (Chazaka: legal presumption). However, when the nuisance is declared intolerable according to scientific criteria and norms, the owner could be forced to remove the nuisance, even in cases of lengthy possession, since in cases of severe damage, Chazaka does not apply.38

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