Attorney General Avichai Mendelblit drew up a list of criteria that local governments could use to give its residents priority in the use of public services and resources. Among the factors he says should be considered are the potential effect on residents’ “sense of community” and whether a service or resource is limited.
The list was submitted to the Supreme Court in response to an appeal of a lower court’s upholding of the right of a fitness center in an upscale Jewish community to reserve 90 percent of its memberships for local residents.
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In his statement, Mendelblit acknowledged that the case involved a “broad question of principle,” another chapter in a prolonged battle over public space in Israel.
The story began in 2014, when the Association for Civil Rights in Israel filed a suit in the Central District Court on behalf of Dr. Ahmad Mansour, an eye doctor from the Arab city of Tira, whose application to join a community fitness center in Tzur Yigal-Kochav Yair was denied. At the time, only residents of this Jewish community and two others nearby were permitted to join the center.
In 2017, the court ruled that the refusal did not constitute discrimination based on ethnic identity or place of residence, and that local governments may restrict the provision of services to non-residents for various reasons, including a desire to strengthen “the sense of belonging and community.”
Earlier this year ACRI appealed to the Supreme Court and also asked the attorney general “to clarify principles regarding the use of similar facilities in other communities.”
In his response to the Supreme Court, Mendelblit cited existing legislation and precedents, arguing that the underlying assumption is that the public sphere must be open to everyone. He added, however, that under certain circumstances access to public space can be limited. He cited a 2017 amendment to the law against discrimination that permits local governments to give preference to residents when doing so benefits those residents.
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The first criterion Mendelblit cites for determining when discrimination is permitted is whether the community, or the service being offered, has “special characteristics” that must be preserved for some reason, including “to preserve a sense of community.” The size of the community is also a factor. The implication is that small gated communities have more leeway in excluding nonresidents than larger, less exclusive communities.
Another criterion is the extent to which the service or place, such as a fitness center or a public park, is a “limited resource.” In this case, Mendelblit writes, “Residents’ interest in enjoying the service they in effect paid for out of their taxes and which is intended chiefly for their use must be taken into consideration.”
Additional considerations include the funding source (residents can receive priority for services funded by property taxes) and whether nearby communities offer similar services. In addition, while public parks should be open to all, a case can be made for restricting nonresident access to a park with unique fixtures.
According to the attorney general, if a local government weighs the considerations and concludes that residents should receive priority, it must decide how this will be accomplished, for example by simply giving residents a discount or by actually imposing restrictions on nonresidents. The response to the Supreme Court included examples of intervention by the attorney general, such as when Nof Hagalil and Afula barred non-residents from these cities’ parks in 2018.
In a statement to the Supreme Court, Tzur Yigal-Kochav Yair welcomed Mendelblit’s response, saying it did not express “any criticism or find [an example of] exceeding authority or a disproportionate decision.” The statement noted that the community has fewer than 10,000 residents and added that the fitness center “constitutes a very important place for community meetings.” The local authority also said that the criteria affirm that reserving just 10 percent of memberships for nonresidents is “reasonable and proportionate.”
Attorney Gil Gan-Mor, director of the social and economic rights unit at the Association for Civil Rights in Israel, criticized the state’s response. He said it left a large loophole that permitted kibbutzim and other small communities to bar outsiders from using their public spaces and facilities “on the pretext of a sense of community.” He said that this rationale was particularly galling in light of what he said was the fact that these communities are located in regional councils that for historical reasons enjoy a clear advantage over other nearby communities.” He cited as examples of this advantage “disproportionate control over land and access to natural resources” that allow these communities to have parks and facilities “that nearby communities can only dream about.”