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Not a nuisance, but perhaps a taboo?

Common law is very clear that cemeteries are not a nuisance per se.  This means that as long as it is permitted by applicable zoning and other land use laws, neighbors cannot block the development of a cemetery.  A proposed 100,000 plot cemetery on 60 acres in San Ramon, California, however, raises an interesting issue.  Many of the residents in the surrounding area are "are natives of China and India who believe that living near a cemetery — even one that would not be visible from their homes — is taboo." 

“We really are affected mentally and psychologically,” said Angappa Murali, a software engineer at Hitachi Data Systems who is from India. “Most of us are immigrants,” he said of his neighbors. “We still have spiritual connections.”

In light of the cultural prohibitions on living near a graveyard shared by many in the San Ramon community, should courts re-evaluate the common law rule? 

It is important to note that nobody particularly enjoys living next to a graveyard.  Since Roman times, graves have generally been located on the outskirts of populated areas.  Although the focus of European Christian burial was in churchyards, a tradition which was followed in colonial times and is still followed in many parts of the United States, American cities like New York, Chicago, and San Francisco have been exiling cemeteries for centuries.  The common law rule that cemeteries (and funeral homes) are not a per se nuisance is not because of their wide acceptance by neighbors.  In 1917, the Supreme Court of Michigan considered an effort by neighbors to halt the construction of a funeral home in Lansing:

We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person.  Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person.  Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance.  … [This] is a matter of common knowledge.  The constant going and coming of the hearse … the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs; … the unknown dead in the morgue; … the thought of autopsies of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman – all of these are conducive to depression of the normal person; each of these a constant reminder of mortality.

Saier v. Joy, 164 N.W. 507 (Mich. 1917).  The neighbors in the modern San Ramon case offer similar objections:

Jay Yao, who emigrated from China, is the chief organizer of the cemetery opponents and says funerals would cast a pall on the community. “They will be forcing kids to see funeral processions,” said Mr. Yao, a vice president of quantitative research at Morgan Stanley Capital International. “Children didn’t do something wrong — why do they have to see it at such an early age?”

Community officials in San Ramon appear to think that the "Chinese and Indian residents with spiritual or cultural objections" to the cemetery are raising new issues.  They are not.  As the Supreme Court of Michigan so colorfully opined in 1917, everyone finds cemeteries depressing.

Tanya Marsh


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