Here’s a case we’ve been following (esp. because our firm is counsel for the two intervenors). In Montanans Against Irresponsible Densification, LLC v. Montana, No. DA 25-0200 (Mar. 17, 2026), the Montana Supreme Court upheld the “Montana miracle” housing and zoning reform statute against an equal protection challenge.
This case is important not only because it upholds loosening of restrictions on housing development and private property rights, but because it also confirms the freedom of contract, and recognizes that private owners remain free to control the use of their own property in the best manner they see fit.
Generally speaking, Montana’s statewide zoning and land use reform measures does things like allow accessory dwelling units, duplexes, and streamline subdivision and zoning regulations. But at the same time, the legislature preserved the ability of property owners who wish to avoid these type of measures to enter into private restrictive covenants. Want to avoid the possibility that your neighborhood is going to be more dense because of this legislative loosening of the regulatory land use stranglehold? Go and find your like-minded neighbors and make an agreement!
The measures drew fire in the form of a state-court lawsuit by a group who claimed that they were not against more housing development, only reckless and “irresponsible” housing development, which these changes allowed. The legal claims included equal protection, substantive due process, and a state law home-rule type challenge.
The equal protection claim was, let’s say, unique. It asserted that because the statutes didn’t cover everyone but allowed owners to enter into private restrictive covenants, it resulted in disallowed differential treatment. Slip op. at 31 (“MAID’s second equal protection claim alleges that the impermissible classifications are (1) citizens who are party to restrictive covenants and (2) citizens who are not party to restrictive covenants but are governed by local land use laws.”).
The court picked up the theme that we pressed in our briefing, that the government’s role should be aimed at loosening the restrictions on the development of private property generally, and the regulations which are adding to the costs of housing specifically. But if property owners would prefer to be more restrictive, they retain the freedom to privately agree to do so:
“The rights created by restrictive covenants are contract rights.” McKay v. Wilderness Dev., LLC, 2009 MT 410, ¶ 57, 353 Mont. 471, 221 P.3d 1184 (citation omitted). When neighbors opt to enter restrictive covenants, the parties create enforceable rights based on the “mutuality of burden and the mutuality of benefit as between the [landowners] arising out of the imposition of…restrictions ….”
Slip op. at 31-32.
If private owners do so, this isn’t the government treating similarly-situated parties differently, merely the result of the government staying in its lane, and private parties staying in theirs:
Like in Gazelka, parties subject to a private restrictive covenant have entered a contract to receive a benefit in exchange for a countervailing burden. The benefit is not the consequence of the unequal protections of the law; it is instead the result of a private contract, carrying both enforceable benefits and enforceable burdens. A restrictive covenant creates a classification that cannot, in its essence, be similarly situated to any classification outside of that restrictive covenant when the alleged discriminatory classification is based on the benefits received from entering that contract. Put simply, homeowners without such covenants are not treated differently because of the statute. The MLUPA and the other housing reform statutes do not violate the right to equal protection solely because the law treats people not subject to private covenants differently, “as discrimination only exists when people in similar circumstances are treated unequally.”
Slip op. at 32-33.
In short, the government isn’t classifying anyone when it declines to regulate private parties. See slip op. at 33 (“MAID also has not met its burden on its second equal protection claim because it cannot establish that those subject to private covenants are similarly situated to those who are not.”).
And what about the Montana right to citizen participation? See Mont. Const. art. II, § 8. The plaintiff here argued that some of the changes in the way that land use was always done and the fast-tracking and trimming down of the procedures will cut them and local input out of the process. Given that such local foot-dragging and death-by-a-thousand-days is a large part of the reason that housing is so expensive, that was kind of the point of the legislation.
The trial court agreed with the plaintiffs, and “concluded that Senate Bill 382 was unconstitutional because site-specific developments often involve discretionary decisions of significant public interest[,]” and thus violated the state constitutional requirement that government agencies afford reasonable opportunities for citizen participation. Slip op. at 22.
The Supreme Court, however, saw it differently. The state constitution doesn’t mandate detailed procedures and opportunities for input, merely a decision chance to participate before the government makes a decision. Slip op. at 26. Although the amendments fast-track what formerly was slow-tracked, they nonetheless still allow “for public participation when site-specific developments deviate from the land use plan and regulations to the extent that they produce impacts for which the public has not been given notice and the reasonable opportunity to be heard.” Slip op. at 27. The court concluded:
Because the Legislature has “provided by law” a detailed provision for notice and public participation, we conclude that MAID has not met its heavy burden to show that Senate Bill 382 is unconstitutional in all of its applications.
Id.
The statutory amendments stand. So now we see how they play out in practice. Congratulations to our firm colleagues Ethan Blevins, David McDonald, and Mark Miller who briefed and argued the case on behalf of two Montana property owners who were prevented from developing housing when this lawsuit prevented the statutory amendments from being implemented.