In Session

Lawmakers across the country introduce bills to strengthen private property rights, crackdown on out-of-control regulators, and get the government out of micromanaging stairways.

Happy Tuesday and welcome to another edition of Rent Free. Over the past month, legislatures across the country have been convening and legislators have been introducing a flurry of housing legislation.

This week's newsletter takes a look at some of the more interesting bills and policies that have been proposed thus far, including:

• Montana's "rights-based" approach to zoning reform
• A new bill in Congress to roll back the powers of California's Coastal Commission
• Colorado's plan to tackle restrictive building codes one step at a time

---

Montana's Proposed Rollback of Euclidian Zoning

Last week, Montana Sen. Becky Beard (R–Elliston) introduced Senate Bill 146, otherwise known as the Private Property Protection Act.

This bill would require that any property use restriction adopted by any unit of state or local government be "demonstrably necessary and narrowly tailored to fulfill a compelling governmental interest in public health or safety."

A private property owner would be entitled to sue a government body that tries to impose or enforce use conditions that aren't narrowly tailored to achieving some health or safety goal. The government will have to prove with "clear and convincing" evidence that its use restriction is the "least restrictive" means of achieving that health or safety goal and that a less restrictive law couldn't achieve the same purpose.

In effect, this bill would create free speech–level "strict scrutiny" protections against land use regulations that are similar to constitutional protections for free speech or freedom of religion.

It's a far higher standard than the current "rational basis" one that says that laws need only be a rational means for achieving some government purpose, and it's on the citizen to prove that the law is irrational.

The law applies to "everything going forward that's either enacted or enforced. If there's an enforcement decision of the laws that are on the books today, after this law is passed, that decision to enforce that law will need to meet this really high standard," says Kendall Cotton, the president and CEO of the Montana-based Frontier Institute.

"This is how things worked before Euclid," he says, referencing the 1926 U.S. Supreme Court decision that established the constitutional permissibility of single-family-only zoning.

Should the bill pass, a property owner could sue to stop the enforcement of any zoning law that stops them from opening a business in a residential neighborhood or constructing an apartment building on their land. The government would have to show that preventing that business or apartment building is necessary for protecting health and safety.

The bill makes exceptions for actions that prevent or abate nuisances and the enforcement of license or permit conditions from that above requirement.

"It's a rights-based approach rather than a regulation-based approach. Rather than taking a piecemeal approach to zoning reform by limiting local discretion, it's setting an overall standard that applies to all levels of government," says Charles Gardner, an attorney and researcher at George Mason University's Mercatus Center.

The vast majority of zoning reforms that have been proposed or passed in recent years have been quite prescriptive. They effectively try to replace restrictive local laws (that prohibit, say, one from building a duplex) with a more liberal set of laws saying the duplex, and only the duplex, is now allowed.

That's the approach Montana took in 2023 when it passed a series of laws allowing accessory dwelling units and small multifamily developments in formerly single-family areas, among other zoning reforms.

The Montana bill instead would establish a whole new standard that presumes any property rights restriction is impermissible except for those things that meet that aforementioned narrowly tailored health or safety standard.

The closest existing legislation to Montana's bill, Gardner says, is federal protections for religious land uses. Those federal protections have generally proved quite robust at stopping local governments from zoning churches and religiously run charitable services out of existence.

State laws that require governments to compensate property owners for imposing new, more restrictive zoning regulations are similar but less sweeping, he says.

---

Congress vs. the California Coastal Commission

The California Coastal Commission is arguably one of the most powerful regulatory bodies in the world. It has near-unchecked authority to approve or deny local zoning laws and individual developments along 860 miles of the state's valuable shoreline.

The federal Coastal Zone Management Act gives the state body a rare effective veto power over federally permitted private activity in the coastal zone as well.

The commission has wielded its powers quite zealously to fine homeowners millions of dollars for installing gates on their property, force other homeowners to dismantle the second floor of their homes, deny affordable housing projects, and even stop the Air Force from permitting more SpaceX launches at Vandenburg Space Force Base—citing Elon Musk's political activity as a reason. (SpaceX has since filed a First Amendment lawsuit challenging the commission's denial of its launches.)

That's earned it a long, diverse list of critics who'd like to see the commission's powers curtailed.

One such critic is Rep. Kevin Kiley (R–Calif.), who announced last week that he plans to introduce legislation to limit the Coastal Commission's powers.

"It's an agency that has gone far beyond its purpose, which is to protect the California coast, and undermined a lot of important policy objectives through the way it's abused its powers," Kiley tells Reason. "It's really past time that we reined them in."

His yet-to-be-introduced legislation would rescind the authority the federal government has delegated to the commission to review federal activity along the California coast and to veto permitted private activity there.

That's a pretty straightforward task that merely requires amending the Coastal Zone Management Act.

Kiley says that his legislation will also attempt to add due process protections for private property owners subject to coastal commission jurisdiction and stop the commission from impeding wildfire rebuilding efforts in Los Angeles.

California Gov. Gavin Newsom has issued an emergency order temporarily suspending the commission's powers in regards to L.A. property owners rebuilding their fire-damaged homes.

Accomplishing those latter goals at the federal level will likely be more difficult given that the commission's powers over nonfederal activity are granted to it by state law.

Kiley says that the Coastal Commission gets about $3 million in federal funds each year and that a requirement of those funds is the commission produce a broad activity plan. He suggests that requirements could be incorporated into that plan to give property owners in the coastal zone more due process protections and to exempt L.A. rebuilding efforts from commission preview.

Kiley says he plans to introduce a full bill within the next week or so.

"To the extent we can get them out of the picture entirely, we're looking at how we can do that. To the extent that's not possible and they have to have some role because they're ultimately a creature of state law, we'll at least look at how we can incorporate requirements into their federal plan," he says.

---

Colorado Considers 'Smart Stair' Reform

As reforms to local zoning codes spread across the country, reformers are increasingly turning their attention to building codes that lay out how new developments must be constructed.

Of particular interest to reformers are existing requirements generally requiring that apartment buildings have two stairwells. Proponents of the idea argue this would allow more efficient, family-friendly floorplans for apartments and make it easier for apartment buildings to be built on smaller lots.

Internationally, single-stair standards are common. In America, most state and local building codes require two staircases in multifamily buildings. A few cities have liberalized building codes to allow some multifamily buildings to be built with a single-stair case. A handful of states have passed or considered bills that would study the change.

Colorado Gov. Jared Polis is hoping that his state will be the next to embrace "smart stair" reform.

"This helps effectively stop forcing builders from building massive apartment buildings because of stair requirements and get government out of micromanaging of stairs," Polis tells Reason.

A bill that would have allowed buildings of up to six stories to be built with one staircase was introduced in the Colorado Legislature last year. It was one of the few introduced housing reforms to not pass the Legislature that year.

Fire officials had opposed the Colorado reforms, arguing they'd reduce fire safety.

Proponents of singe-stair (or "smart stair" reforms, as Polis calls it) say that these fire safety concerns are exaggerated and other requirements around building materials and the installation of sprinkler systems are better means of addressing fire risks.

"Right now [two-staircase requirements] are not really optimized for safety," says Polis. Because the requirement leads developers to construct larger buildings, people are often further away from an exit than if they lived in a smaller, single-staircase building, he says.

In his State of the State speech earlier this month, Polis paired calls for "smart stair reform" with proposals to give faith organizations zoning relief to build affordable housing and reforms to the state's "condo defect" law.

---

Quick Links

• One of President Donald Trump's first-day executive orders calls on all federal departments to look for ways to expand housing supply and reduce housing costs as one way of delivering "emergency price relief."
• A Washington state bill that would cap rent increases in the state at 7 percent passed out of a committee in the state House of Representatives on a closely divided 9–8 vote.
• California's Assembly Bill 253 would allow private third parties to issue building permits. This could help speed up permitting times and could be particularly helpful for people trying to rebuild their homes after the Los Angeles fires. Texas passed a similar law in 2023.
• Was 2024 the "housing election"?
• Last week, the Biden administration withdrew its proposed Affirmatively Furthering Fair Housing Rule that it had yet to finalize. President Donald Trump is likely to replace that rule with something much more scaled back. Read Reason's past coverage of how this wonky fair housing rule became a huge political lightning rod in the 2020 election.