Donald Burns’s current home in Palm Beach. Source: curbed.com.

Earlier this year, after a telecom millionaire with a checkered past challenged the Town of Palm Beach, Florida’s architectural review ordinance on First Amendment grounds, a federal magistrate judge in Florida issued a report and recommendation finding that the house proposed by the applicant was not entitled to First Amendment protection.  The court then entered summary judgment in favor of the town.

Donald Burns sought to construct a new, modern home in a neighborhood otherwise characterized by more traditional architecture.  He filed an application in 2014 to demolish his existing home and construct the new house.  His self-declared intent was to distinguish himself from his neighbors and to communicate modernist design elements to the community.  Neighbors opposed the project.  After reviewing several iterations of the proposed design, the town’s Architectural Commission denied Burns’s application in 2016.  Burns then filed suit, alleging violations of the First Amendment as well as claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The court first iterated that it was the plaintiff’s burden to establish that the activity in question was expressive conduct protected by the First Amendment.  The court considered the Eleventh Circuit’s two-part test for determining whether conduct receives First Amendment protection, which requires analyzing whether the actor intends to communicate a message and whether there is a “great likelihood” that a reasonable viewer would understand the conduct is communicative.  The court also considered case law on the distinction between commercial merchandise and expressive products.  The court noted that only two prior cases had addressed questions of whether architecture constituted protected speech:  a 2004 federal district court case in Nevada held that residential architecture was not protected, while a 1992 Washington case found that religious architecture was sufficiently expressive so as to receive First Amendment protection.

Applying the test typically applied to determine whether merchandise is expressive, the court found that Burns’s proposed home was not expressive conduct deserving of First Amendment protection.  The house, in the court’s eyes, had a predominantly non-expressive purpose:  it was intended for residence by an individual or family.  Additionally, the court found that it was unlikely that a reasonable person would view the house as expressive conduct.  Accordingly, the court declined to review the architectural review ordinance under the First Amendment.

The district court adopted the magistrate’s report and recommendation in late September.  The case is now on appeal to the Eleventh Circuit.  This case is of particular interest to First Amendment observers, as cases involving questions of whether architecture is protected under the First Amendment are few and far between.

Burns v. Town of Palm Beach, No. 17-CV-81152, 2018 WL 4868710 (S.D. Fla. Jul. 13, 2018).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.