A Mostly-Hidden Beachfront Mansion Opens The Door For First Amendment Scrutiny Of Local Government Architectural Review Standards

Published date22 September 2021
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Constitutional & Administrative Law, Trials & Appeals & Compensation, Real Estate
Law FirmFairfield and Woods
AuthorTodd G. Messenger

The Burns Case

Recently, the Eleventh Circuit Court of Appeals decided Burns v. Town of Palm Beach, a novel case about whether the First Amendment protects the architectural expression of "a really big beachfront house that can't be seen, located on a quiet residential street in Palm Beach, Florida."1 While the Court held that the design of the proposed house is not an expression that is protected by the First Amendment, it did not rule out First Amendment protections for architecture.2 In fact, it appears to have illuminated the path for the next Plaintiff who wants to use a building's design to make a statement.

Burns wanted to demolish a "traditional" beachfront mansion and build a new one.3 The new mansion was designed in the mid-century modern architectural style.4 According to Burns, the style of the new mansion (even though it was more than double the size of his traditional mansion), would "reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions."5

To build a new mansion in Palm Beach, the property owner must obtain approval from the Architectural Review Commission ("ARCOM").6 ARCOM is a seven-member commission of people who are "specially qualified" by "training or experience in art, architecture, community planning, land development, real estate, landscape architecture, or other relevant business or profession, or by reason of civic interest and sound judgment to judge the effects of a proposed building upon the desirability, property values and development of surrounding areas."7 At least two, but not more than three, ARCOM members must be Florida registered architects.8

ARCOM decides whether to approve a new building by applying 10 design review criteria to the building's design.9 Among these criteria are requirements that the building be in "good taste," that it is "in harmony with the proposed developments on land in the general area," that it is not "excessively similar" or "excessively dissimilar" compared to other buildings within 200 feet, and that it complies with Town code requirements "insofar as the location and appearance of the buildings and structures are involved."10

ARCOM denied Burns' application.11 Burns sued the Town in federal court under 42 U.S.C. ' 1983.12 He alleged (among other things) that the denial violated his First Amendment right to freedom of expression.13

Burns lost the case on summary judgment.14 On appeal, in a two-to-one decision, the Eleventh Circuit Court of Appeals affirmed.15 The Eleventh Circuit held that the design of Burns' home did not constitute protected expression because the home was effectively hidden behind walls and dense landscape buffers. As such, even if Burns intended to convey a message (a point that the Town conceded), the Court concluded, "A reasonable viewer would not infer some sort of message from Burns's new mansion because, quite simply, a viewer can't see it."16

Burns lost the case not because architecture is not protected expression, but instead because the Court concluded that Burns' particular expression could not be seen.17 Even though the decision was two-to-one, the Court was unanimous that architecture (even residential architecture) may in some cases be imbued with a sufficient communicative element to be protected by the First Amendment.18 Consequently, First Amendment challenges to architectural review standards and related procedures are likely to increase in frequency as architects, their clients, and their lawyers work to figure out the contours of First Amendment protections for expressive architecture.

A Primer on First Amendment Protections for "Expressive Conduct"

The First Amendment provides in part, "Congress shall make no law . . . abridging the freedom of speech . . . ."19 The free speech clause of the First Amendment is "incorporated" against the states (and local governments) by the 14th Amendment.20 That means that, like the federal government, the authority of state and local governments to regulate speech and conduct is constrained by the First Amendment.

The importance of the free speech guarantee of the First Amendment cannot be overstated. The freedom of speech that is protected by the First Amendment is "the 'matrix, the indispensable condition, of nearly every other form of freedom.'"21 "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."22 It is not hyperbole to suggest that the First Amendment is the essential legal foundation for American ingenuity and creativity.

The First Amendment's "free speech" guarantee is not limited to written or spoken words. Its protections extend to a wide range of what courts call "expressive conduct"-things like saluting a flag, refusing to salute a flag (or even burning a flag); organizing or participating in a parade; participating in a sit-in; picketing; playing music; and panhandling.23

"In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play," the U.S. Supreme Court has "asked...

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