Zoning laws dictate what people can do on their land, and the restrictions do not end at death. Peter and Annica Quakenbush encountered obstacles when they tried to open a green cemetery in Michigan.
The married couple followed the rules for their eco-friendly enterprise, a burial forest that preserves natural conditions. The Quakenbushes searched for elevated woodland with mature trees and found the perfect spot in Brooks Township north of Grand Rapids, Mich.
They bought the property, developed a site plan, and lined up a donor for a conservation easement, a legal agreement to limit development. They consulted the local zoning administrator each step along the way to ensure their cemetery would be legal. They also gained community support, leading to a waitlist for burial sites.
Peter Quakenbush, who has a doctorate in biology and shares a passion for environmental protection with his wife, was motivated to do things right. However, before they could lay the first body to rest, a small group of activists raised concerns and persuaded the township to bury the business.
The weapon of choice was zoning, a regulatory tool that allows the government to control where people live, work and play by drawing lines on maps and setting rules for each zone. Regulators have used this method to limit otherwise lawful activities for more than 100 years. Denials often come on a case-by-case basis, but Brooks Township passed a ban on all new cemeteries.
“There is language in the ordinance that’s been pulled directly from our website, so it’s very clear that this ordinance was directly written to ban us,” Annica Quakenbush says.
Rather than give up their dream, the couple sued. Our public interest law firm, the Institute for Justice, represents them. Cases like this sometimes drag on for years. Still, the Circuit Court for Newaygo County, Michigan, moved fast when Brooks Township filed a motion to dismiss — an attempt to kill litigation before trial.
The court denied the motion and struck down the cemetery ban as unconstitutional on Aug. 15, 2024, signaling a win on the merits for the Quakenbushes. Once the court enters a written order formalizing the ruling, the township can decide to appeal.
Regulators should let the cemetery ban rest in peace instead.
County and municipal leaders have the authority to regulate development. They cannot stop otherwise lawful activity on private land without good reason. The Constitution guarantees due process and equal protection under the law, and many state constitutions go further.
No state constitution allows arbitrary trampling of property rights. Yet, the zoning police keep trying in thousands of jurisdictions nationwide. The earliest motive was racism. Baltimore made it illegal for Black people to live in predominantly White neighborhoods in 1910, and other cities followed.
Public planners today claim different agendas. They say they want to protect property values or maximize tax revenue. Some people still say the quiet part out loud, acknowledging they want to keep out the “riff-raff” or shield favored businesses from competition.
That happened to African immigrant Awa Diagne, who was forbidden from opening a natural hair braiding salon in South Fulton, Ga., because policymakers wanted to protect a nearby business.
“It is not fair for small businesses to have to compete with someone right next door to them,” South Fulton Councilwoman Carmalitha Gumbs said during a public hearing on July 9, 2024.
The zoning police often consider themselves do-gooders and guardians of “community character,” a vague notion they rarely define. So, they enthusiastically ban front-yard vegetable gardens, auto repair shops, food trucks, homeless shelters, and many other activities.
The control starts at birth. Single mom Bianca King faced prosecution when she opened an in-home daycare for little children in Lakeway, Texas. Golfers on a nearby course, including a former mayor, saw playground equipment behind a fence in King’s backyard and complained. The city responded with a cease-and-desist letter, forcing another lawsuit.
This cradle-to-grave abuse must end. If the zoning police cannot show restraint, then courts must step in and remind them of constitutional boundaries.
