Michigan Court Tolls The Death Knell For Targeted Zoning

Earlier this year, IJ sued Brooks Township, Michigan, for enacting (and then doubling down on) a ban on cemeteries. At a recent hearing, the trial court rejected the township’s attempt to dismiss our case.

But it didn’t stop there. The court went further to declare the ban unreasonable and unconstitutional. Such a ruling is nearly unprecedented at this stage in litigation—and it’s a huge win for the property and economic liberty rights of all Michiganders, as well as a step toward ending zoning abuse.

So how did we get here?

Readers may recall our case launched earlier this year to fight back against the township’s efforts to block Peter and Annica Quakenbush’s plans to open a conservation burial ground—a special type of cemetery that allows for simple and affordable green burials while an easement ensures the land remains protected in its natural state forever. 

Brooks Township responded to our January lawsuit the way most governments do: by trying to dismiss the case. But at a hearing, the township didn’t dispute two vital facts: (1) Cemeteries are a lawful land use under Michigan law, and (2) the challenged ordinances are a flat ban on all cemeteries. The township’s argument died once it conceded these facts.

The Michigan Supreme Court has said that the Michigan Constitution does not allow a municipality to ban a safe land use just because it’s unique or misunderstood—and that’s especially so when the excluded land use is a human necessity, like a cemetery. In allowing our case to move forward, the judge voiced concern that upholding the ban could give local governments the power to completely exclude all kinds of legitimate land uses, including hospitals and schools. 

Although we expected to win the motion, our win reaffirmed that municipalities can’t infringe on property and economic liberty rights by claiming sweeping zoning authority, which was much more robust than we hoped. In zoning cases, the government usually gets every benefit of the doubt. So it can take an incredible amount of work just to survive these types of motions. Valid claims are often buried in a procedural morass—but not this time.

This time the court understood our arguments and the law. When it became clear that the ordinances were a complete ban on a legitimate land use, the path was paved for the court to clarify that the zoning power is not absolute and may not be used to trample on Michiganders’ rights.

This victory marks an early success in our fight against zoning abuse. In the August issue of Liberty & Law, we announced the launch of IJ’s new Zoning Justice Project. This ruling is the Project’s first win: In vindicating Peter and Annica’s rights, the trial court recognized that municipalities can’t use targeted zoning to completely exclude a legitimate land use or occupation—a modest but meaningful step toward ending zoning abuse, in Michigan and elsewhere. The township may appeal, and we welcome an opportunity to establish strong precedent affirming this win at a higher court.

Prohibiting entrepreneurs like Peter and Annica from using their property peacefully and productively is un-American. The constitutional right to use your property may be subject to legitimate health and safety concerns—but not the whims of local bureaucrats.

Katrin Marquez is an IJ attorney.