11th Circuit Divides About Whether Design of Palm Beach Mansion is Protected by the First Amendment

We "affirm on the First Amendment claim because there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion"

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Yesterday, a divided 11th Circuit panel decided Burns v.Town of Palm Beach. This case presented an ongoing issue at the intersection of property law and constitutional law: is architectural design protected by the First Amendment.

Judge Luck's majority opinion summarizes the facts:

Donald Burns wants to knock down his "traditional" beachfront mansion and build a new one, almost twice its size, in the midcentury modern style. The new mansion, Burns says, will reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. The new two-story mansion will have a basement garage, outdoor pool and spa, cabana, and exercise room.

To build his new mansion, Burns had to get the approval of the Town of Palm Beach's architectural review commission. . . . 

Applying its criteria, the architectural review commission denied Burns's building permit. The commission found that his new mansion was not in harmony with the proposed developments on land in the general area and was excessively dissimilar to other homes within 200 feet in terms of its architecture, arrangement, mass, and size.

Burns sued the town, claiming 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.

Here is a photograph of Burns's current 10,063 square foot mansion.

But in 2013, Burns decided he wanted to knock down the "traditional home" so he could build a new mansion in the midcentury modern style to convey the evolution of his personal philosophy. He wanted his new mansion "to be a means of communication and expression of the person inside: Me." He picked a design of international or midcentury modern architecture because it emphasized simple lines, minimal decorative elements, and open spaces built of solid, quality materials. According to Burns, the midcentury modern design communicated that the new home was clean, fresh, independent, and modern—a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. It also communicated Burns's message that he was unique and different from his neighbors.

And here is the revised plan:

Burns initially submitted a plan to the town council that proposed demolishing his existing 10,063 square foot mansion and building in its place a 25,198 square foot mansion in the midcentury modern design. His emphasis on fewer personal possessions included two stories and a basement containing a five-car garage, wine storage area, and steam room. The first floor would have an open-air entry, guest rooms, dining room, kitchen, family room, powder rooms, and living room. The open-air entry would lead to the pool, spa, and cabana. The second floor would have more guest rooms, an exercise room, and the master bedroom.

The majority found that Burns's design was not protected by the First Amendment, nor were the Town's criteria unconstitutionally vague:

We conclude that summary judgment was not granted too early and affirm on the First Amendment claim because there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion. We also affirm the summary judgment on the Fourteenth Amendment claims because the commission's criteria were not unconstitutionally vague and Burns has not presented evidence that the commission applied its criteria differently for him than for other similarly situated mansion-builders 

The dissent disagreed:

In my view, the First Amendment -- the most powerful commitment to think, speak, and express in the history of the world -- does not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason. The First Amendment's protection of the freedom of speech is not limited to the polite exchange of words or pamphlets. It is not limited -- as the majority suggests -- to public displays clearly related to the narrow issues of the day. It protects art, like architecture, and it protects artistic expression in a person's home as powerfully as in the public sphere, if not more so. 

The majority and dissent even squabbled about the nature of the architectural review commission:

Judge Marcus writes:

The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker "ARCOM" may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the Commission do not like the way it looks 

The majority responds.

The dissenting opinion uses the name "ARCOM" for the architectural review commission and then calls the name it uses "Orwellian." Dissenting Op. at 72. If by Orwellian the dissenting opinion means any government agency that administers regulations impacting our lives, then the architectural review commission is as Orwellian as the state board of therapeutic massage, the local dog catcher, and every one of the alphabet soup of departments and agencies and bureaus in Washington, D.C.

Yes, Orwellian. All of the above.

This case should be included in property law casebooks.

NEXT: Over the past year, the Supreme Court Public Information Office "Clipped Approximately 10,000 News Articles Related to the Court and the Justices, Roughly Half of Them Tweets"

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  1. In a First Amendment world that includes erotic dancing, commercial advertising, and drug sales information as protected expressive activity, how can it be the case that architecture is not a protected expressive activity?

    I think you could contract into architectural controls, for example by CC&Rs of a homeowner’s association, and the government can regulate various features of a building through zoning and occupancy rules, but how can the government validly control your artistic architectural expression on your property?

    1. “erotic dancing, commercial advertising, and drug sales information as protected expressive activity”

      None of those [nor house design] should fall under the 1A which was designed to protect political [broadly defined] speech.

      1. I’m fine with it protecting everything outside of that, and fight those battles way out there in the rough, and well away from the fairways of proper political speech. It provides a good buffer, amply demonstrated as needed, relentlessly.

  2. I’d think it’s more of a taking issue than 1st amendment, depending on whether or not the regulations were in place when he bought the property.

    The desire to shoehorn property rights into the first amendment is largely due to it being the only one the courts really take seriously.

    1. “taking issue”

      They are not “taking” his house nor any portion of its value.

      The atrocity he wants to build will diminish his property value. They are doing him a favor.

      1. Great — what else can the government do to save us and for which we should be eternally grateful? Need we bow and scrape before burrocrata too?

      2. Sure they were. If the board did not exist, Burns would own his property PLUS the option to do something different with it. Now, he owns only the existing property and has been denied the option value. That’s a taking.

        Whether it’s a material taking or whether just a taking can be socially justified is an entirely different question. But they are clearly taking some of the value of his property. (And that’s even when I agree with you that the proposed house looks worse than the current one.)

        1. To allow the construction would then be a taking from the neighbors, though, who may have bought their property with the expectation that this would not happen.

          There was a situation described in the Volokh Conspiracy where one property owner had to cut down trees that obstructed another owner’s view. I wonder if the discussion about it as a taking then would still apply.

          http://volokh.com/2012/11/18/local-government-forces-homeowners-to-cut-down-trees-so-that-retired-baseball-star-john-olerud-would-have-a-better-view-of-the-seattle-skyline-from-his-house/

          1. No, it would not be a taking from his neighbors, because the right to do with it what you want is part of property, the right that others around you not do with theirs what you don’t want ISN’T part of property.

            If you want to control a view, own it. That’s the bottom line.

          2. What Brett said.

            I also wonder if you bothered to read the article you quoted. While that article does suggest that the current precedent might treat it as not-a-taking, the author was unambiguous that “laws like the Clyde City ordinance are ill-conceived”.

  3. What is “the government” but a compact among a group of people as to how they will interact?

    If the founders of a neighborhood like the color green, and want to live in a neighborhood where all of the houses are green, should they be able to restrict themselves and their successors in requiring that houses always be painted green?

    More generally, should a group of people be able to decide to restrict themselves and their successors, so as to achieve and maintain an overall aesthetic that they consider desirable?

    1. If they want to be surrounded by green houses and green cars, they can buy up all the lots around them, paint them green, and rent them out only to people with green cars.

      If they aren’t willing to fork over the money to buy said properties, hands off — it ain’t theirs.

      1. “If they aren’t willing to fork over the money to buy said properties, hands off — it ain’t theirs.”

        In the case of existing covenants, ‘they’ did fork over their money. Each of the individuals comprising the ‘they’ have agreed to be bound by the covenant for the value that that adds for each. Don’t enter into a collective if you don’t wish to follow the collective’s rules.

  4. I think the biggest issue is his desire to build a BIGGER mansion.

    Not only is that not my definition of “minimalism” but size is content neutral…

  5. The proposed house should be a criminal offense frankly. Architects hate their clients.

    1. Nope; we love our clients. Contractors are another matter; one I’m dealing with now has my charity taxed to the max. That said, I wish we had a better house scheme to pit against the archetypal small-minded petty design review board bent on appeasing a neighborhood’s absolute lowest common denominator with capricious bureaucratic tyranny.

      Because my professional opinion concurs with Bob from Ohio : It’s a pretty wretched design.

      (I don’t think I’ve ever agreed politically with Bob, but here we are in perfect harmony architecture-wise. Dern’t that beat all…)

  6. I’m trying to reconcile an emphasis on fewer personal possessions with the desire to more than double the size of the house.

  7. Both styles are just awful.

  8. Just burn the house down. Simple!

  9. Senior Judge Marcus seems to dislike government agencies . . . except when taking paychecks from government agencies, as he has for more than 50 years, since the age of 23.

    1. Yes, taking a paycheck for work performed is exactly the same thing as having a government agency dictate to you what you may do on your private property. The hypocrite!

      1. It appears the guy was a narc, too.

        Another Republican “libertarian.”

  10. Around here you find combinations of setback, height, and floor area to lot ratio in the zoning laws. Towns can prohibit McMansions and other monstrosities without requiring a committee to judge whether a house is in good taste.

  11. The judges should be impeached. The value of the new house is likely twice that of the old one. The old house is actually a nuisance, with asbestos, lead, poor safety measures, wasteful energy footprint. Its architecture is extremely generic, andin no way artistic. Yes, the new house looks like a brutal, Stalinist, airport terminal. The Committee could have made itself useful by demanding he return with “prettier,” less Commie.

  12. Yes, Orwellian. All of the above.

    No, you jackass, all regulation is not “Orwellian.”

    Get a brain.

  13. Certainly this isn’t one or the other?

    If the NY planning commission wanted to rezone and demolish Trump tower, that would be pretty clearly against the first amendment.

    But you don’t have an obvious first amendment right to build a river walk, that is what a planning commission is for.

    Here the statement ought to be a little bit more substantive than “an expression of myself” to grant first amendment protections, no?

    And tbh it probably should be protected, but idk if the first amendment is a good way of doing it.

  14. Wait, is this an “Onion” parody?

    “Hi, my philosophy has evolved over my life. I am now into simpler things. To prove this, I want to knock down my normal-sized mansion and put up something that’s 150% larger!”

    “Someday I will evolve even further, and will care about material things so little that I hope to build and live in a 100,000 square-foot mansion to live it, to demonstrate my devotion to minimalism. Things no longer matter to me. That’s why I want more of them and why I want bigger things. Because something something religion and free speech.”

    This guy is officially my favorite aggrieved plaintiff so far in 2021.

  15. Would the fact that plaintiff sold the property in question back in October 2020 make the issue moot?

    https://therealdeal.com/miami/2020/10/08/telecom-tycoon-sells-billionaires-row-teardown-in-palm-beach-for-28m/

    1. I would think so, but the Supreme Judicial Court of Massachusetts just decided a zoning case where the plaintiff sold the property during litigation. (https://www.mass.gov/files/documents/2021/06/07/w12901.pdf) Some permits and approvals are sold along with the land. If the new owner wanted to build a modest midcentury modern mansion, the decision would affect the new owner’s rights.

  16. The world would be a lot better place if we eliminated the government’s ability to impose “its majoritarian aesthetic whims” on the rest of us. I live in a city where every newly constructed home has to meet a certain minimum number of design “points”. 3 points for a garage not facing the road, 1 point for arched windows, 1 point for each wall with something besides wood or vinyl material etc. etc. etc. The result is that architecture is now stagnant here because every single new home is built almost exactly the same – often the cheapest way to hit the minimum point value.

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