Americans want more choice for one of the last and most important decisions they will ever make: where to be buried. Peter and Annica Quakenbush want to provide fellow Michiganders with more choice by opening the state’s first conservation burial ground—a type of green cemetery that preserves the land in its natural state. But Brooks Township opposes the Quakenbushes and, to stop them, banned any new cemeteries. That drastic step violates the Michigan Constitution’s protections for property rights and economic liberty.
Green burial provides a simple and environmentally responsible way to care for the dead. Peter and Annica’s conservation burial ground will provide Michiganders a unique burial option where the deceased are integrated into the environment with minimal disruption to the native forest.
Peter, whose passion for nature led him to pursue a PhD in biology, realized ten years ago that green burial aligns with his and Annica’s personal philosophy of sustainability and closeness to nature. So, they decided to open a burial forest. And they found the perfect location last year in Brooks Township, Michigan. The property is high, dry, and covered in a native forest more than 100 years old—ideal for a burial forest and nature preserve.
The Quakenbushes then approached the township’s zoning administrator, who told them to develop a site plan and get a conservation easement. They followed the administrator’s instructions and took additional steps to ensure the cemetery would comply with green-cemetery certification requirements and state health and safety standards.
Peter and Annica were ready to move forward when the Township Board—spurred on by a small group of activists—passed the Cemetery Ordinance, a flat ban on any new cemeteries in the township. Despite strong support for the plan from a large portion of the community, the board passed the ordinance specifically to prevent the Quakenbushes from opening their cemetery.[1] That’s unconstitutional.
The Michigan Constitution protects individuals’ rights to use private property and engage in any business that doesn’t harm the public. The ban infringes on exactly those rights, prohibiting the Quakenbushes from using their property for a legal and productive economic purpose. Caring for the dead is a fundamental and unavoidable human need. Operating a conservation burial ground is a safe, productive, and legitimate way to earn a living. That’s why Peter and Annica have teamed up with the Institute for Justice (IJ) to file a state lawsuit against the township and end this ban violating the Michigan Constitution.
[1] See, e.g., https://brookstownship.org/wp-content/uploads/2023/08/PC-Minutes-6-19-23.pdf (public comments in support of the Ordinance specifically referring the “‘green cemetery’ in the planning stages for the Newaygo area”); Email from Cliff H. Bloom, Attorney, Bloom Sluggett, PC, to Joe Selzer, Zoning Administrator, Brooks Township Regarding Brooks Township-new private cemeteries and private property burials (Feb. 14, 2022) (on file) (recommending that no cemeteries be allowed in the Township in response to a citizen’s question “regarding private cemeteries and ‘green burials’”).
IJ defends property rights by fighting abusive zoning laws nationwide.
IJ’s Zoning Justice Project aims to end zoning abuse by protecting the right of all Americans to productively and peacefully use property.
Case Team
Clients
Attorneys
Renée Flaherty
Senior Attorney
Katrin Marquez
Attorney and Elfie Gallun Fellow in Freedom and the Constitution
Media Resources
Get in touch with the media contact and take a look at the image resources for the case.
Phillip Suderman Communications Project Manager [email protected]
Related News
Liberty & Law Article
Michigan Court Tolls The Death Knell For Targeted Zoning
Liberty & Law Article
Town Gives Red Light To Green Burials
Green Burial is a Popular, Affordable, and Responsible way to Care for the Dead
Green burial is a way of caring for the dead where bodies or cremated remains are buried directly in the earth in a natural setting with organic materials and without embalming. A conservation burial ground is a type of green cemetery established in partnership with a conservation organization that includes a plan that provides for perpetual protection of the land according to a conservation easement or deed restriction, preserving the land in its natural state.
Green burial is an ancient practice that’s been regaining popularity among Americans who want a simpler, more affordable, and environmentally responsible way to care for their dead. As of 2023, 60% of Americans have expressed an interest in green burial, up from 55.7% in 2021.[1] Green burial is no fad: some form of green burial was the norm in the United States until the Civil War. And some religions, such as Judaism and Islam, practice the equivalent of green burial as a rule and do not embalm bodies.
As of September 2023, there are an estimated 420 green burial cemeteries of various types in the United States and Canada. Many of these cemeteries are certified by the Green Burial Council, a private organization. The first conservation burial ground in the United States opened in 1998, and there are currently 11 certified by the Green Burial Council. Conservation burial grounds have operated safely in the United States for over two decades. Though there are four cemeteries that offer a green burial option in Michigan, there are no conservation burial grounds. The Quakenbushes want to open the first.
Entrepreneurs Peter and Annica Follow their Dream to Open a Conservation Burial Ground
Peter and Annica are innovative, passionate entrepreneurs who want to start an environmentally responsible and in-demand business. For them, green burial is part of a larger philosophy about being closer to nature.
Peter began to think about operating a conservation burial ground in Michigan after he learned about green burial ten years ago. While working on his PhD in biology, he started to consider the conservation burial ground “Plan B” for making a living, until Annica encouraged him to pursue his dream as “Plan A.” Ever since, the Quakenbushes have worked toward this dream. Peter has used his botanical expertise to learn how to care for forests—dreaming of finding one of his own to nurture as his life’s work.
They finally found the perfect property last year: a white-oak and white-pine forest containing the types of trees, vegetation, and animals native to Western Michigan before it was extensively logged in the 19th century.
The Quakenbushes plan to bury each body or cremated remains near a tree, with the option of adding a stone marker. The stones would be glacial, the same kind that are typically uncovered when you dig into the soil, blending into the environment. Peter and Annica plan for the land to remain undeveloped and protected as a forest in perpetuity with Peter drawing on his expertise in botany to nurture the native forest and remove any invasive species. The family will maintain trails throughout the property and allow public access.
With the property secured, the Quakenbushes began the process to open the cemetery. They obtained confirmation that they could get a conservation easement, got approval from the local health department, and made sure their plans complied with all requirements for certification from the Green Burial Council. Because Peter and Annica understood they would need to secure a special use permit to operate the cemetery on the property, they contacted the zoning administrator for Brooks Township and followed his instructions.
The Quakenbushes were ready to proceed, until Brooks Township threw them a curveball.
Opponents Conspire to Pass an Ordinance Banning Cemeteries
Although there is a large base of support among community members for the conservation burial ground, a small group of influential activists opposed it before the Township Board and Planning Commission. A lawyer for the township advised against allowing the Quakenbushes or anyone else to operate a private cemetery.[2]
The activists and lawyer’s arguments against the conservation burial ground are baseless. For example, one activist complained to the Planning Commission that the burial ground would be too close to a well that’s a water source for the community.[3] But that’s not true. The distance between the burial ground and the closest well is far beyond the minimum distance required. Indeed, the local health department has already approved the project, suggesting there are no concerns with proximity to water.[4]
The lawyer’s concerns are similarly misplaced. He suggested the township ban cemeteries because of the possibility of “orphan cemeteries,” where municipalities have to take over the maintenance of cemeteries that are no longer being taken care of by their original owners. But those concerns are irrelevant to the Quakenbushes’ cemetery. Because a conservation burial ground is a nature preserve, there won’t be anything for the Township to maintain. The forest will remain forest. There will be no landscaping, grass cutting, or monument repair. Similarly, his suggestion that the conservation burial ground would be an unproductive use of land is also wrong. Cemeteries are necessary. Operating one—especially one that is also a publicly accessible nature preserve—is a productive use of land. But that didn’t stop the lawyer from opposing the cemetery—he even emailed the Quakenbushes a letter threatening them with legal action although they’d done nothing wrong.[5]
The protests worked: In June 2023, the Brooks Township Board unanimously passed an ordinance that “expressly prohibited and banned” all cemeteries in the Township.[6] Because the ban was enacted specifically to stop the Quakenbushes’ plan, the ordinance’s definition of “cemetery” includes “green cemetery, conservation cemetery, burial forest or forest cemetery.”[7] The Township took this drastic measure because the Quakenbushes had done everything above-board—there were no other excuses to stop the cemetery. Just as the Quakenbushes were about to make their dream come true, the ordinance stopped them.
The Cemetery Ordinance Violates the Michigan Constitution
The Michigan Constitution protects Peter and Annica’s rights to use their property as they see fit and to pursue their chosen occupation free from arbitrary government interference. Brooks Township cannot ban the Quakenbushes from operating a business on their own property when there are no legitimate concerns regarding public health, safety, or welfare. And the Cemetery Ordinance isn’t based on reasonable concerns about public health, safety, or welfare.
The Quakenbushes own their land and should be able to use it to operate a conservation burial ground that meets (and exceeds) health and safety standards. In Michigan, a municipality cannot use zoning to completely exclude a recognized land use like a cemetery.[8] Nor can a municipality make zoning determinations based on presumptions.[9] That means Brooks Township cannot constitutionally ban cemeteries based on general aversions to or unfounded presumptions about the safety of green cemeteries or the maintenance of conventional cemeteries.
Michigan law also recognizes that certain needs are so essential to the human condition that they deserve protection from discriminatory zoning.[10] Death is unavoidable. And so long as people have buried the dead, they have lived and worked alongside cemeteries. Cemeteries are a necessity of life and using property to operate them is a safe, productive, and legitimate way to earn a living.
Peter and Annica should be able to open a conservation burial ground on their property—both because they have a right to earn a living and because people have a right to honor the dead as appropriate. The Michigan Constitutions guarantees so.
The Plaintiffs
The Plaintiffs are Peter Quakenbush, Annica Quakenbush, and their conservation cemetery, MI Burial, LLC.
The Defendants
The Defendants in this case are Brooks Township; the Brooks Township Board and each of its members—Clerk Jennifer Badgero, Supervisor Cory Nelson, Treasurer Vivian Miller, Trustee Danielle Hummel, and Trustee Ryan Schultz; the Brooks Township Planning Commission and each of its members—Chairperson Mark Guzniczak, Vice Chairman Phil Knape, Secretary Pat Baker, Trustee Mark Pitzer, Trustee Karl Frederiksen, and Trustee Chris Wren; and Brooks Township Zoning Officials Joseph Selzer and Jerry Tuin. The individual Defendants are sued in their official capacities.
The Lawsuit
This case raises claims under the Due Process Clause and the Enumeration of Rights Not to Deny Others Clause of the Michigan Constitution. Victory in this case will reaffirm that local governments can’t arbitrarily ban people from operating safe, legitimate businesses on their own property.
The Litigation Team
The litigation team consists of Institute for Justice Senior Attorney Renée Flaherty and Institute for Justice Attorney Katrin Marquez. They are being assisted by their local counsel, Stephen J. van Stempvoort of Miller Johnson.
About the Institute
The Institute for Justice (IJ) is a public-interest law firm, and the national leader protecting economic liberty and property rights. IJ has successfully challenged unconstitutional limitations on individuals’ rights to use private property for socially responsible and productive purposes throughout the country. In Texas, IJ successfully defended a home daycare targeted by a city zoning board.[11] In North Carolina, IJ is defending a family’s right to use their property to operate a nonprofit animal sanctuary that offers educational programs and volunteer opportunities.[12] And in Georgia, IJ is defending a nonprofit that plans to build a tiny homes community to expand affordable housing.[13]
[1] https://nfda.org/news/statistics.
[2] Email from Cliff H. Bloom, Attorney, Bloom Sluggett, PC, to Joe Selzer, Zoning Administrator, Brooks Township Regarding Brooks Township-new private cemeteries and private property burials (Feb. 14, 2022) (on file).
[3] https://brookstownship.org/wp-content/uploads/2023/08/PC-Minutes-6-19-23.pdf.
[4] Letter from John Ringler, Environmental Health Sanitarian, District Health Department #10, to Peter Quackenbush (Feb. 17, 2023) (on file).
[5] Letter from Clifford H. Bloom, Attorney, Bloom Slugget, PC, to Peter Quackenbush and Annica Quackenbush (June 22, 2023) (on file).
[6] Cemetery Ord. § 4.
[7] Id. § 3.
[8] See Kropf v. City of Sterling Heights, 391 Mich. 139, 155–56 (1974). See also Ottawa Cnty. Farms, Inc. v. Polkton Twp., 131 Mich. App. 222, 226–27 (1983).
[9] See Robinson Twp. v. Knoll, 410 Mich. 293, 316–19 (1981).
[10] See Mich. Const. art. I, § 23. See also Nickola v. Grand Blanc Twp., 394 Mich. 589, 607–08 (1975).
[11] https://ij.org/case/texas-home-daycare/.
[12] https://ij.org/case/north-carolina-animal-sanctuary/.
[13] https://ij.org/case/georgia-tiny-homes/.
