Supreme Court Rules Town Must Reconsider Policy Limiting Pool Membership to Residents

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The Lev Hamakom country club in Kochav Yair-Tzur Yigal, July 2017.
The Lev Hamakom country club in Kochav Yair-Tzur Yigal, July 2017.Credit: Moti Milrod

The Supreme Court ruled on Thursday that the central town of Kochav Yair-Tzur Yigal must reconsider its policy to limit its country club membership to local residents alone, saying that the reasoning behind the policy has "no factual basis."

In its ruling, the justices partially accepted an appeal filed against a Central District Court ruling made three years ago, which approved selling 90 percent of the memberships to Kochav Yair residents only.

The district court ruling was issued by Judge Ofer Grosskopf, who has since been elevated to the Supreme Court. Thursday’s ruling prizes the value of social equality over the considerations of local community solidarity, and reinforces the principle in which public resources need to be accessible to the general public, without any intrinsic preference for local residents. The Supreme Court ruling also states that any attempt by the local authority to limit such access must undergo thorough examination.

In late 2017, Grosskopf denied a petition filed by a resident of the Arab city of Tira against the council’s decision to reserve 90 percent of the memberships in its country club for town residents, while leaving the remainder available to Jewish and Arab residents of neighboring towns.

The council's decision was instated after a petition was filed by Tira residents against the club's previous membership rules, which excluded Arabs but welcomed Jewish residents from surrounding areas.

Dr. Ahmed Mansour, an ophthalmologist from Tira, had petitioned the Central District Court in 2014 against Kochav Yair-Tzur Yigal and the organization operating the country club after his request to buy a membership for himself; his wife, a physiotherapist in Tel Aviv’s Ichilov Hospital, and their young son was denied. The petition was submitted by the Association for Civil Rights in Israel. Mansour said in the petition that there was no swimming pool in Taibeh and Kalansua, the neighboring towns, while the pool in Tira only opens late in the summer.

“There appear to be good neighborly relations with Kochav Yair,” Mansour said in 2018. “My clinic is full of people from there... It becomes a problem only when we also want to be in the country club. Suddenly, segregation is required. It’s offensive. I could buy membership to a pool in Kfar Sava despite the distance. But this racism annoyed me. I only want justice.”

Grosskopf’s 2017 ruling said that restricting municipal facilities or activities to residents “could, under suitable circumstances, be a decision that serves the municipality’s function of creating and encouraging social activities for its residents and strengthening social solidarity among them.” Grosskopf also accepted the council's claim that banning outside residents from purchasing memberships is intended to foster the sense of community within the club, rather than to exclude others, for instance, on the basis of ethnicity.

In Thursday’s ruling, justice Daphne Barak-Erez wrote that in addition to this specific incident, the appeal raised “deeper issues, which touch on the obligations of local governments and questions of distributional justice and equality in the division of resources.” Barak-Erez said that while Kochav Yair may have “violated the requirement of equality in everything concerning nonresidents,” there was still no proof that the reason for this was “discrimination on the basis of nationality,” or ethnic identity. The ruling makes it clear that preference granted to local residents must be more limited.

Barak-Erez also criticized the importance Grosskopf allotted in his ruling to “a sense of community,” which was also included in the legal opinion submitted by Attorney General Avichai Mendelblit. She asked what this sense of community was, and who has the right to enjoy it – "Anyone? Only those who live in a small community? What are the boundaries of this region?" she asked.

A few months ago, as part of the proceedings, Mendelblit submitted to the court 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 argument of a sense of community could very well serve as a cover for exclusion and discrimination,” she wrote, and for this reason it must be very carefully defined and delimited. Closing the gates to those who are different or keeping out strangers indirectly strengthens stereotypes against those we do not know and could also exacerbate social divisions, Barak-Erez wrote.

In order to justify excluding nonresidents from use of public services run by local authorities, Barak-Erez wrote, it will require a thorough examination of the resource or service in question, "which must be of the sort that its contribution to the community is crucial."

As to the specific case involved in the appeal, Barak-Erez said the local council’s decision gave excessive preference to local residents. She added that Grosskopf’s ruling did not provide a full solution to the problem, due to its "relatively generous assumption concerning the limits of giving preference to local residents, without having established a factual basis. In the absence of such a basis, the district court’s relief may only be a temporary solution, and certainly not a permanent one," she wrote.

Gil Gan-Mor, an attorney and the director of the social and economic rights unit at the Association for Civil Rights in Israel, said the precedent-setting Supreme Court ruling “adopted the plaintiff’s arguments that the public space in a local authority and its facilities need to be open to residents of neighboring [communities] too, and the burden of justifying preference for [local residents] is a heavy burden.”

He added, "The ruling reduces the possibility of disguising prejudice on the basis of nationality, ethnicity, religion or status by basing it on place of residence. We call on Kochav Yair to immediately open the country club to all who are interested.”

Kochav Yair-Tzur Yigal mayor Yuval Arad said he was pleased with the court’s ruling and “as opposed to claims [made in the lawsuit], the court ruled that there was no discrimination based on nationality. The court ruled that the local council needs to make a new decision and we will act accordingly.”

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