How Do Japanese Local Ordinances Regulate Sensitive Facilities Like Cemeteries, and How Can These Decisions Be Challenged?
Developing land for uses that are necessary but often unpopular with local communities—such as cemeteries, waste treatment plants, or industrial facilities—is a significant challenge in any country. In Japan, these projects often ignite complex, multi-party legal disputes that pit the project applicant against both the government regulator and organized local opponents.
This creates a two-front legal battle. On one side, the applicant may need to sue the government to compel a decision on a permit that has been indefinitely delayed due to political pressure. On the other, nearby residents may sue the government to prevent it from ever issuing the permit.
This article explores this legal dynamic through a case study involving a permit to construct a new cemetery. It dissects the crucial role that detailed local ordinances play in supplementing vague national laws and examines the different legal tools available to both applicants and opponents, including the Action for an Order of Performance (義務付け訴訟, gimuzuke soshō) and the Action for a Prohibitory Injunction (差止めの訴え, sashitome no uttae).
The Regulatory Framework: Vague National Law, Detailed Local Ordinances
The legal framework for establishing a cemetery in Japan is a prime example of the division of labor between the national government and local municipalities.
The governing national law is the Cemeteries and Burials Act of 1948 (墓地、埋葬等に関する法律, Bochi, Maisō-tō ni Kansuru Hōritsu). This law is famously sparse. Article 10 requires anyone wishing to operate a cemetery to obtain a permit from the local authority (the prefectural governor or the mayor of a designated city). However, the Act provides virtually no specific criteria for granting or denying this permit.
This legislative gap is intentionally filled by local ordinances (条例, jōrei). Faced with disputes between developers and residents, municipalities have enacted their own detailed regulations to govern the permitting process. These ordinances typically include:
- Substantive Standards: Specific rules on location (e.g., minimum distances from homes, schools, and water sources) and facility requirements (e.g., walls, drainage systems, parking).
- Procedural Requirements: A mandatory pre-application process that often requires the applicant to post public notices, hold briefings for local residents, and engage in good-faith consultations with those living adjacent to the proposed site.
It is within this interplay of a vague national law and a highly specific local ordinance that legal disputes over facilities like cemeteries are adjudicated.
Part 1: The Applicant's Remedy for Government Inaction and Delay
Consider the applicant's side of the dispute. A religious corporation plans to build a modern, park-like cemetery. It diligently follows the city's ordinance, spending three years conducting the required public notices, resident briefings, and consultations. After completing this exhaustive process, it formally files its permit application with the mayor.
However, due to lingering opposition from a small group of residents, the mayor simply fails to act on the application. Five months pass with no decision, leaving the applicant in legal limbo, unable to move forward with the project.
In this situation, the applicant's primary legal remedy is an Action for an Order of Performance (義務付け訴訟, gimuzuke soshō), specifically the "application-based" type as defined in the Administrative Case Litigation Act. This lawsuit is designed for situations where a citizen has filed a valid application and the administrative agency has failed to respond within a reasonable time.
The lawsuit would typically be filed as a two-part claim:
- An Action for Confirmation of the Illegality of Inaction (不作為の違法確認の訴え, fusakui no ihō kakunin no uttae): This asks the court to formally declare that the mayor's failure to make a decision is illegal.
- An Action for an Order of Performance: This asks the court to order the mayor to grant the cemetery permit.
The key requirement for the first part of the claim is that a "considerable period of time" has passed without a decision. Given the three years of pre-application procedures, a subsequent five-month delay in acting on the formal application would almost certainly be deemed illegally long by a court. If the court finds the inaction illegal, it will then assess whether to order the permit's issuance, which involves a review of the application against the legal criteria set out in the ordinance.
Part 2: The Opponents' Remedy to Block the Permit
Now, consider the perspective of the project's opponents: a group of nearby residents and a competing cemetery operator. They want to stop the project before it starts. Their primary legal tool is the Action for a Prohibitory Injunction (差止めの訴え, sashitome no uttae), governed by Article 37-4 of the Administrative Case Litigation Act. This is a preventative lawsuit that asks a court to order the mayor not to issue the permit.
This is a powerful remedy, but the legal hurdles are exceptionally high. The opponents must satisfy two key requirements: plaintiff standing and the likelihood of "grave harm."
A. The Plaintiff Standing Requirement (原告適格, genkoku tekikaku)
To file a prohibitory injunction, a plaintiff must have a "legally protected interest" that would be infringed if the permit were issued. This is where the court's analysis becomes highly specific.
The Competitor's Standing: The competing cemetery operator's claim is the easiest to resolve. They almost certainly lack standing. As established in a long line of cases, a business's interest in being free from new competition is considered a purely economic or factual interest, not one that is legally protected by law. Unless a statute contains specific provisions designed to regulate the market by balancing supply and demand, a competitor cannot sue to block a permit issued to a rival. The Cemeteries and Burials Act contains no such provisions; its purpose is public health and order, not economic protectionism.
The Nearby Residents' Standing: The residents' claim is more complex and depends entirely on the content of the local ordinance.
- The national Cemeteries and Burials Act itself, with its vague purpose of ensuring public health and respecting religious sentiment, is generally considered insufficient to grant standing to individual residents.
- The key lies in the specific, concrete rules of the city ordinance. For example, if the ordinance mandates a 100-meter buffer zone between a cemetery and private residences, or requires specific drainage systems to prevent contamination of local water sources, a court can interpret these rules as being designed to protect the specific health and environmental interests of the identifiable group of people living within that protected zone.
- This interpretation allows the residents' interest to be elevated from a general concern for the public good to a "legally protected interest." The ordinance creates a zone of individual protection, and those within it have standing. This analytical method—finding a protected interest not in the national law but in the details of a local ordinance—is a critical technique used by Japanese courts to adjudicate land-use disputes.
B. The "Grave Harm" Requirement (重大な損害, jūdai na songai)
Even if the residents can establish standing, they face another significant hurdle. They must demonstrate that the issuance of the permit is likely to cause them "grave harm."
This is a high standard. "Grave harm" refers to a serious injury that cannot be easily remedied after the fact, particularly with monetary damages.
- Subjective Harm vs. Objective Harm: The residents' subjective claims, such as the psychological distress or "unpleasantness" of living near a cemetery, are generally insufficient to meet this standard.
- Economic Harm: A potential decline in property value is a form of economic harm. In theory, this can be compensated with money, making it less likely to be considered "grave" and irreparable for the purposes of an injunction.
- Health and Safety Harm: The strongest argument for grave harm would be a concrete, evidence-based claim of a threat to physical health or safety. For example, if the residents could provide credible expert evidence showing a high probability that the proposed cemetery's drainage system would contaminate their drinking water wells, that would constitute a potential "grave harm" and could support a prohibitory injunction.
Without a clear and present threat of serious, irreparable harm to health or safety, it is very difficult for opponents to succeed in a preventative lawsuit, even if they have standing.
Conclusion
Disputes over the development of sensitive facilities in Japan often evolve into complex, multi-front legal battles. The legal framework provides distinct tools for both applicants and opponents, with the details of local ordinances playing a surprisingly decisive role.
- For applicants facing unreasonable administrative delays, the Action for an Order of Performance is a direct and effective tool to compel a government decision.
- For opponents seeking to block a project, the Action for a Prohibitory Injunction is available but is a decidedly uphill battle. Standing for nearby residents depends on whether they can anchor their claim in specific, protective provisions of a local ordinance. Competitors, by contrast, are almost always denied standing. Furthermore, all opponents must meet the high threshold of proving a likely "grave harm," a standard that often requires demonstrating a tangible threat to health and safety.
This legal dynamic underscores that in Japan, the regulation of land use is a deeply localized process. While national laws provide a basic framework, the substantive rights and procedural battles are often won and lost on the nuanced details of city- and prefecture-level ordinances.