Model Legislation: The Private Property Protection Act

The Private Property Protection Act affirms the fundamental right to use private property

Background

Life, Liberty, and Property – these are what America’s founders believed to be the fundamental natural rights of every person. Property Rights are truly the cornerstone of the American system. As John Adams eloquently put it, “property must be secured, or liberty cannot exist.”

As a result, State Constitutions confer extraordinarily strong protections for fundamental individual rights, including property rights, often beyond the protections enshrined in the Federal Constitution. In modern courts, government actions which infringe on fundamental constitutional rights are generally subject to the highest standard of judicial review, known as ‘strict scrutiny’. Under this standard, the burden is placed on the government to prove that infringements on a fundamental right are:

Necessary to serve a compelling governmental interest in protecting public health, safety, welfare, and
Narrowly tailored to achieve that purpose, and
The least restrictive path possible of achieving its purpose

This test sets a very high bar for the government to justify infringing on our fundamental rights and works to actively constrain the expansion of government power.

Yet, state and local governments today across America regulate nearly every aspect of owning and using private property, extending restrictions far beyond what is truly necessary to protect public health, safety, and welfare.

Frontier Institute’s 2022 Montana Zoning Atlas report documented over 5,000 pages of local zoning regulation in over 500 individual zoning districts within the state of Montana, regulating everything from what kind of home you can build to the landscaping and exterior color of your building, and more.

The National Zoning Atlas project has likewise documented thousands of additional pages of zoning regulations and districts in states across the country, each with their own unique and complex restrictions on nearly every aspect of property use. As NZA founder Sara Bronin puts it, zoning kills property development “by a thousand cuts”.

It’s a certainty that many of the copious state and local land use regulations which property owners are subject to are much too vague or arbitrary to meet the ‘strict scrutiny’ standard of review used by courts.

To make matters worse, modern courts have rejected the ‘strict scrutiny’ standard afforded other fundamental rights like free speech and instead utilize “rational basis” when reviewing challenges to land use regulation, the most lenient standard of judicial review. Under the rational basis standard, courts essentially presume state and local land use regulation to be constitutional, only requiring the government to prove their regulation is “rationally related” to some “legitimate government interest” – so nearly anything is upheld!

Property rights have effectively been relegated to mere second-class rights in America. This is surely not what America’s founders intended.

The Private Property Protection Act gives private property owners first-amendment level legal protections from onerous local government zoning and land use regulations. It requires government infringements on property use to be met with the highest standard of judicial review in the courts, just like other fundamental rights such as free speech.

What the Private Property Protection Act does:

Renewed Commitment: Makes crystal clear that the Right to Use Property is a fundamental constitutional right and should not be infringed unless the government can demonstrate it is absolutely necessary to protect the public.
New Standard: All future local zoning and land use regulations must be limited only to those necessary and narrowly tailored to fulfill a “compelling governmental interest.” The bill creates an exception for regulations that address nuisances and makes clear this does not impact restrictions resulting from private covenants.
Shift the Burden of Proof: Grants standing for property owners to challenge onerous local zoning and land use regulations in court. Courts are instructed to strike down the regulation unless the government can prove that the regulation is a) necessary to advance a compelling governmental interest, b) narrowly tailored to achieve that purpose, and c) uses the least restrictive path possible to achieve its purpose.

News Coverage of the Private Property Protection Act:

Op-Ed: Property Rights Are Fundamental Rights

Legislature weighs private property rights with local government land use planning

Committee hears bill that would restrict local zoning based on private property rights

Montana Legislature introduces Private Property Protection Act

Montana’s Proposed Rollback of Euclidian Zoning

Montana Bill Proposes Restoring More Rights to Property Owners

Breakdown of the bill from the Institute for Justice