Eleventh Circuit Court of Appeals Affirms Summary Judgment in Favor of Town Following Denial of Mansion Building Permit

This post was authored by Matthew Loescher, Esq.

Donald Burns sought to knock down his “traditional” beachfront mansion to build a new one, almost double in size, in the midcentury modern style. To do so, Burns first needed to get the approval of the Town of Palm Beach’s architectural review commission. The commission denied Burns’s building permit, finding that his new mansion was not in harmony with the proposed developments on land in the general area. Burns sued the town, alleging that the criteria the commission used to deny his building permit violated his First Amendment free speech rights and his Fourteenth Amendment rights to due process and equal protection. The district court granted summary judgment for the town, and Burns appealed.

On appeal, the court noted that Burns’s new mansion was not expressive conduct protected by the First Amendment, but declined to decide whether residential architecture could ever be expressive conduct and, if so, what the proper First Amendment test would be. The court found that a reasonable viewer would not infer some sort of message from Burns’s new mansion because a viewer would not be able see it due to the proposed privacy wall and hedges. Furthermore, Burns failed to offer any evidence that his house would be open to everyone or that he has invited the public to view his architectural design. Here, to the contrary, Burns removed it from public view with a limestone wall, louvered gate, heavy landscaping, and substantial vegetation.

Burns next argued that section 18-205(a), the architectural review commission’s criteria for reviewing building permits, was void for vagueness. Specifically, Burns claimed that section 18-205(a) failed to inform ordinary people what it prohibits, and allowed the commission unbridled discretion to deny applications and target modern architecture. The court noted that the Third, Fifth, and Ninth Circuits recognized that some of the exact words and phrases that Palm Beach used here, such as “harmony” and “compatible” and a comparison of architectural styles among nearby structures, were not vague and arbitrary. Moreover, due to the detailed criteria and the procedural protections in section 18-205(a), the court declined to find that it provided “no rule or standard at all.”

Lastly, Burns contended that the district court erred in granting summary judgment on his class-of-one equal protection claim because he offered evidence that the commission reviewed  other fifteen midcentury modern designs and approved all of them except one. However, the only evidence Burns proffered in order to meet this burden – that he was treated differently than similar homeowners – was the report his expert David Chase made for the commission. While Chase’s report identified homeowners who had midcentury modern designs that were approved, his report did not state that the other midcentury modern designs were “not in harmony with the proposed developments on land in the general area” but approved nonetheless. Additionally, Chase’s report did not compare the architectural compatibility, massing, and size of Burns’s property to the mansions the commission approved. Accordingly, Burns class-of-one claim also failed.

 Burns v Town of Palm Beach, 2021 WL 2325300 (11 Cir CA 6/8/2021)