Defending the “Montana Miracle” and the right to build on your property

Montana, despite its vast land mass, faces the same housing shortage plaguing the rest of the nation. In 2023, state legislators passed a suite of laws, signed by Gov. Greg Gianforte, to boost housing production and affordability in residential areas. The legislation was recommended by the governor’s housing task force and received bipartisan support from statewide groups, including Frontier Institute. Dubbed the “Montana Miracle,” these reforms uniquely and importantly balance new home construction with respect for existing owners’ property rights. 

Montana’s approach should serve as a model solution and a superior alternative to unlawfully restrictive land-use schemes embraced in other states. Yet the reforms themselves are under attack in the Treasure State by some who value the crushing land-use status quo over property rights and much-needed new housing. 

The Montana Miracle specifically allows duplexes and accessory dwelling units (ADUs) on single-family lots without voluntary land-use restrictions. Homeowners in deed-restricted communities can keep their single-family zoning if they choose. 

The legislation spurred action from Missoula landowners Clancy Kenck and David Kuhnle. Clancy, a retired entrepreneur, bought a lot near his home with plans to build a duplex for his two disabled Vietnam veteran brothers to live independently yet near supportive family. 

Meanwhile, David was in mid-plan to build an ADU behind his rental property. He was able to redesign his ADU to capitalize on the law’s expanded size allowance from the previous 600-square-foot limit to 1,000 square feet. 

However, days before the laws took effect, a group of homeowners called Montanans Against Irresponsible Densification (MAID) sued the state. MAID claims the reforms unfairly benefit some property owners over others, and that more homes will slash their own property values. Never mind that there’s no legal basis for an equality claim, and multiple studies have suggested that adding ADUs to a city’s housing supply does not negatively affect property values. 

A state court injunction halted the laws’ implementation for several months—along with Clancy’s and David’s building plans. The Montana Supreme Court has since lifted the injunction and the case has resumed, back in trial court. 

With free representation by Pacific Legal Foundation, Clancy and David sought to join the case as intervenors to defend their property rights against MAID’s misguided efforts to thwart sound, market-based solutions to the state’s housing crisis. 

Victory will protect Montanans’ rights to build new housing and choose voluntary property restrictions. A win will also resonate beyond Montana’s borders, providing a template for other states to escalate building freedom while rejecting anti-property rights policies such as subsidies, inclusionary zoning, and rent control.