Parsha Bamidbar

Parshas Bamidbar:
The Tents of Yaakov, Circa 2010:

Respecting Your Neighbor’s Privacy

By: Rabbi Baruch Meir Levin







In recent years conservationists, urban planners, and politicians have teamed up to fight a common enemy. They have declared war on urban sprawl, that shopping-mall-producing, gas-guzzling phenomenon in which an urban area spreads outward through the low-density development of rural lands. Decrying the detrimental effects it has on the environment, the economy, and society in general, they have passed zoning laws, imposed fines, and funded projects under the banner of what is dubbed ‘Smart Growth.’
Smart Growth is the name given for their urban planning and transportation initiative. It aims to concentrate growth in the center of a city by promoting compact land use. Smart-growth zones would feature good public transportation, walker- and bicycle-friendly streets, and mixed-use development with a range of housing choices. The most widely used tool for achieving smart growth is the local zoning law. Through zoning, new development can be restricted to specific areas, and additional density incentives can be offered.

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Smart Growth has been applied to a number of urban areas, but its success is not without question. A study released in November of 2009 characterized the smart-growth policies in the state of Maryland as a failure, concluding that “[t]here is no evidence after ten years that [smart-growth laws] have had any effect on development patterns.” Factors include a lack of incentives for builders to redevelop older neighborhoods and limits on the ability of state planners to force local jurisdictions to approve high-density developments in smart-growth areas. Buyers demand low-density development and voters tend to oppose high-density developments being built near them.
This study makes clear something we all know intuitively. If given the choice, most people would rather live in a large, spread-out single-family home than in a crowded urban area regardless of the benefits that living in a city might offer. Those big suburban houses have two very important things going for them – space and privacy. People like their beautiful expansive backyards, extra-large kitchens, and two-car garages. And they like the fact that their houses are spread far enough apart to ensure their privacy. No one likes being eyed from all sides by nosy neighbors. Having the freedom to keep your windows and shades open is just something that city-dwellers cannot dream of.  
How does the Torah deal with this basic human need to live in privacy? Dealing extensively with the camping of the B’nei Yisroel in the desert, this week’s Parsha provides the background for this discussion. While our Parsha focuses on the larger issue of each tribe’s location within the encampment, elsewhere the Torah reveals to us B’nei Yisroel’s solution to the age-old problem of lack of privacy due to one’s neighbors. Based on the the Gemarah in Bava Basra 60a, Rashi explains that when the evil Bilaam exclaimed Ma tovu ohalecha Yaakov – How good are your tents, Yaakov! – he was referring to the fact that the myriad of tents comprising the Israelite encampment all had their openings strategically placed so as not to intrude on any neighbor’s privacy.
Considering the fact that the area of the encampment was limited (see Sanhendrin 5b), and there were hundreds of thousands of tents to position correctly, accomplishing that feat was no small task. It took a concerted effort on the part of all the Jews. Furthermore, during their years in the desert, the B’nei Yisroel encamped in forty-eight different locations, and each place had its own peculiar topography.  Therefore, new arrangements had to be worked out each time they pitched camp. When you think about it, the efforts they must have expended not to impinge on each other’s privacy must have been truly mind-boggling.
While this may seem as just a praiseworthy behavior, it actually is the basis for a codified law that is enforceable in beis din. The Shulchan Aruch, Choshen Mishpat 154:3 rules that one may not place a door opposite his neighbors existing door nor a window opposite his window or courtyard. Such an invasion of privacy is actually a form of damage and is termed hezek reiah – damage by vision.
One might mistakenly assume that damage by vision only occurs when someone actually stares at his neighbor. However, Reb Isser Zalman Meltzer,zt”l, explains that the mere placing of a window in such a location inflicts damage on one’s neighbor even if never looked through. This is because the knowledge that the neighbor has that he is now susceptible to his neighbor’s gaze is enough for him to limit his use of the area onto which the window opens.
Given the seriousness of hezek reiah, the following is a legitimate question . It would seem that much of residential construction nowadays is at odds with the laws of hezek reiah. How can Jews live in houses that ostensibly are not built according to the requirements outlined in Choshen Mishpat?
The earliest mention of this issue dates back roughly five hundred years. The Mahar”i Tat”z who lived during the sixteenth century in Safed (Tzfas) writes that it was common practice in his city to place windows directly facing each other provided that there was a certain minimal distance between them. He rules that since the people were already accustomed to living in that manner, continuing to build in such a fashion does not constitute a form of damage and would be permissible. In applying this ruling of the Mahar”i Tat”z, many contemporary authorities place great importance on a city’s zoning laws as generally indicative of the customary manner of building for the Jewish residents of that city.
Some, but certainly not all, authorities place even greater importance on municipal zoning laws. They discuss a situation in which a certain zoning law has not attained the status of a full-fledged custom among the Jewish residents of the city. Even in that circumstance, a person does not automatically assume that he will be able to stop construction projects that cause him hezek reiah since most of the time they are in compliance with the relevant zoning ordinances. After all, there are any number of people who do not adhere for one reason or another to the Torah’s laws of hezek reiah and are encumbered only by the municipality’s zoning laws. Being aware of this reality, a Jew who builds or buys a house has in essence accepted the fact that he is forced to live with a level of privacy that will be determined by the zoning regulations. Thus, we cannot consider a newly-opened window that is in compliance with the zoning laws as limiting the existing neighbor’s privacy since the neighbor has already relinquished his claim to that level of privacy.
An argument can be made that a logical extension of this principle would give legitimacy to a zoning board when it issues a variance outside of the standard zoning ordinances. However, this assertion is debatable since a person may only accept the inevitability of his living under the purview of standard zoning ordinances, but not the arbitrary decisions of a zoning board.
At times, the owner of a property may want to change the use of a building, such as opening a shul or a store in a house that had been used as a residence. If such a change complies with the city zoning laws, then no new hezek reiah issues would arise as has been explained above. However, when the change is in violation of the zoning laws (which is enough of a reason to forbid it), a hezek reiah issue will likely exist.  Rav Moshe Shternbuch, shlit”a, points out that the very same windows may now be creating a greater privacy infringement due to the increased number of people looking out onto the neighbor. Indeed, even cities that allow houses of worship in residential areas would usually be stricter regarding window placements and land easements. Thus, the windows which were once permitted are now forbidden since now they are the source of hezek reiah. This is one of the more common situations in which people find themselves transgressing the prohibition of hezek reiah. In such instances a zoning board would likely propose frosting the windows or creating a screen by planting trees. This would be an acceptable solution according to Halacha as well.
There is another factor that may allow for a lenient approach towards hezek reiah as it applies today. The truth is that in most situations people nowadays have an easy option to protect themselves from their neighbor’s intrusive looks; simply put up window blinds and shades. Because of this fact, many authorities suggest that our windows should not generally be considered as sources of hezek reiah.
Of course, one should understand that in order to determine the validity of a particular claim of hezek reiah between neighbors any number of important physical and halachic factors will need to be evaluated. Therefore, any claim of hezek reiah should be reviewed by a beis din to determine the halachically correct course of action.
An important point must be made before leaving the subject. Even where the placement of a window is permitted according to Halacha, one may never use it to gaze into his neighbor’s house. As the Shulchan Aruch Harav (hilchos nizkei mammon, 11) writes, “It is forbidden to watch your friend while he is conducting his activities at his home or property without his prior knowledge, for he may not wish people to see these activities.”
Although the standards and conditions of modern life make our adherence to these laws look on the surface very different than when our forefathers encamped in the desert, the truth is that at its core it’s really all the same; the same halachic process that applies the Eternal Truth of the Torah to the facts on the ground. Thus, keeping these laws as they apply to us with care and diligence will ensure that we too will merit what Bilaam exclaimed upon seeing all those Jewish tents arranged in such beautiful respect for their neighbor’s privacy, “Worthy are they that the Shechina rests in their midst”.

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