Is property a fundamental right?

The answer to that question should be simple. After all, the Due Process Clause of the U.S. Constitution protects “life, liberty, or property” without qualification. And, for nearly a century, the U.S. Supreme Court has consistently treated property as a fundamental right, forbidding the government from imposing arbitrary or irrational restrictions on its use. Village of Euclid v. Ambler Realty Co. (1926) .

Despite this clear command, the Washington State Court of Appeals joined a number of state and federal courts in holding that property is not fundamental and, therefore, not subject to the heightened protection guaranteed by due process. In the case Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office (OSF), the court upheld a Jefferson County ordinance that requires all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition on any new development (without regard to local conditions, let alone the scope of the proposed development) against a citizen claim that the buffer requirement was arbitrary and irrational.

A citizen group, made up of mostly residential property owner, challenged the rationality of the County’s buffer requirement, arguing that the law requires a small home in a fully developed urban neighborhood to dedicate an identical amount of land as an industrial plant built in a previously undeveloped area. It made no sense. Indeed, the County’s own scientists agreed with the property owners, concluding that “residential development probably does not have major adverse effects on shoreline resources.” The scientists further noted that they couldn’t predict the effectiveness of any buffer without considering a number of factors, including the proposed development, the location, and surrounding uses.

By deeming property a “non-fundamental” right, however, the Washington court was able to uphold the ordinance without grappling with the County scientists’ inconvenient findings. That is because courts will only question the government’s justification for demands like buffers if they affect a fundamental right. Thus, the court upheld the buffer demand based solely on the County’s conclusion that they are good for the environment—regardless of whether they demand too much property from homeowners.

The Washington court’s reasoning for deeming property a “non-fundamental” right should wave a red flag for anyone interested in any of the rights secured by the U.S. Constitution. The court did not consider the U.S. Supreme Court’s large body of case law concerning property rights. Instead, it relied on a case in which a disgruntled job applicant argued that he had a fundamental right to a particular profession of his choosing, Amunrud v. Bd. of Appeals (Wash. 2006). The Washington Supreme Court, in that case, concluded that the right to a particular profession is not among those core right secured by the Bill of Rights, and therefore regulations on professions are subject to minimal scrutiny. Noting that both professions and land uses can be subject to regulation, the OSF court concluded that property must therefore be a “non-fundamental” right too.

That superficial and dangerous reasoning falls apart upon any scrutiny. After all, speech—which is unquestionably a core right—is also subject to regulation. Moreover, the U.S. Supreme Court has repeatedly chastisement that state legislature cannot regulate property rights out of existence by merely enacting a law that gives the public a right to private property. Palazzolo v. Rhode Island (2001).

Making matters worse, the OSF court doubled-down on its decision to subordinate property rights, holding that the state legislature had rendered property rights “secondary” to the public’s interest in the environment when it enacted the Shoreline Management Act, which requires local government to enact regulations coordinating development and environmental interest.

Earlier this week, PLF attorneys filed a petition asking the U.S. Supreme Court to review and reverse this troubling decision.