Practice Highlights - October 10, 2018

Residential Architecture & First Amendment Speech

Southern District of Florida Weighs in on Whether Residential Architecture is Protected First Amendment Speech

U.S. District Judge Beth Bloom has approved the report and recommendation of U.S. Magistrate Judge Bruce Reinhart in the matter of Donald Burns v. Town of Palm Beach, a significant opinion in the area of land use and constitutional law. Only one other court in the country has squarely addressed the issue of whether a resident has a protected First Amendment right to express himself in his architecture.

Donald Burns, a longtime resident of the Town of Palm Beach, argued that the Town’s architectural review commission violated his constitutionally protected First Amendment right to freedom of expression when it denied his application to demolish his traditional-style home and construct a new International/modern-style home on the ocean front lot he has owned for almost two decades. Mr. Burns had testified that he wanted the design of his new home to communicate his “evolving personal philosophy with an emphasis on few possessions and simplicity in lifestyle.” Because his lot was undersized and non-conforming, his application required a special exception and site plan approval.

By a 5-2 vote, the Town commission determined that the proposed residence would be “excessively dissimilar” from other homes within 200 feet in terms of architectural compatibility, arrangement of components, appearance of mass and diversity of design. Professional architects and neighbors opposed the application. Mr. Burns did not appeal to the Town Council or seek certiorari review in state court but sued the Town in federal court.

No appellate court has addressed whether a residential structure constitutes visual art protected by the First Amendment. Only one reported federal decision from a district court in Nevada had previously weighed in on the issue. (Committee for Reasonable Regulation of Lake Tahoe v. Tahoe Regional Planning Agency, 311 F. Supp. 2d 972, 1004 (D. Nev. 2004).)

In recommending judgment in favor of the Town, U.S. Magistrate Judge Bruce Reinhart observed that the First Amendment extends only to conduct that is “inherently expressive.” U.S. District Judge Beth Bloom adopted the Magistrate Judge’s report in its entirety. She agreed that although Mr. Burns intended to communicate a message with his proposed home, the predominant purpose of Burns’ structure was not expressive art but to serve as a residence. Further, Mr. Burns failed to show a great likelihood that a reasonable observer would understand his proposed structure to predominantly communicate a message. Pointing to the Eleventh Circuit’s recent opinion (Fort Lauderdale Food Not Bombs v. Fort Lauderdale, 2018 WL 4000057 (11th Cir. Aug. 22, 2018),) Judge Bloom emphasized that “context matters” in First Amendment analysis. Judge Bloom also dismissed Mr. Burns’ void for vagueness, overbreadth, substantive due process and equal protection claims.

The Town of Palm Beach is represented in the case by Margaret Cooper, Joanne O’Connor and Daniel Widboom of Jones Foster.