Property Rights Are Fundamental Rights

Our fundamental right to own and use property must be respected.

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.” Article II, Section 3 of Montana’s Constitution echoes our founding father’s high regard for property, listing the right to “acquiring, possessing and protecting” property among the inalienable rights of all people.

Yet, state and local governments today regulate nearly every aspect of owning and using private property. America’s founders would be rolling over in their grave if they saw how private property is treated by our government.

Local zoning is a prime example of how onerous regulations go too far in restricting the freedom of landowners. In 2022, Gov. Greg Gianforte’s Housing Task Force  highlighted how starter home types like duplexes and accessory dwelling units were outright prohibited in vast portions of Montana cities, worsening the state’s housing crisis by zoning out affordable options that are desperately needed in the housing market. Thankfully, the 2023 legislature adopted sweeping pro-housing reforms to legalize building middle-density homes like these in cities. However, a labyrinth of additional regulation remains, obstructing property owners from building homes on their own land.

But land use regulation goes far beyond just impacting the availability of housing. Montana governments are also regulating the size of your yard, the pitch of your roof, how big or how small your home can be, how many non-family member roommates you can have (Bozeman limits you to four), if you can have a sauna, where you can park your car, your landscaping and exterior color of your building, and more.

With the stroke of a pen, your private property might be labeled unsuitable for certain development by the government while your neighbors literally across the street enjoy greater freedoms. You could wake up one morning to find the weekend rental you’ve legally operated for years to help pay for your mortgage has been declared illegal.

Some, like Gallatin County, even go so far as to declare carte blanche that all uses of property are outlawed except for a small list of uses deemed ‘allowable’. So much for the “inalienable” right to use property!

Our government clearly has little respect for our fundamental right to own and use property. Property rights have been effectively relegated to mere second-class rights in Montana. This is surely not what America’s founders intended.

The Montana Supreme Court has consistently reaffirmed their strong precedent that laws which implicate a fundamental right enshrined in Article II, Section 3 of the state constitution must survive “strict scrutiny” in the courts. This means a law will only be upheld if the government can prove 1) infringing on the right is absolutely necessary to address a “compelling state interest” in protecting public health and welfare, 2) that the law “narrowly tailored” to address that interest, and 3) the law is the least restrictive path to achieve the state’s objective.

It’s a certainty that many of the copious land use regulations which Montana property owners are subject to don’t meet this fundamental right standard. Is there a “compelling state interest” in public health or safety advanced by regulating the exterior color of your building? No way. Are sweeping declarations that all uses of property are prohibited except for a small list of allowable uses “narrowly tailored”? I don’t think so.

Our fundamental right to own and use property must be respected. In Montana, land use regulation must be limited only to what is absolutely necessary to protect public health and safety. Period.