Model of Burns' proposed new home as demonstrative exhibit rotated view. Courtesy photo

A novel South Florida constitutional-rights case had its moment before the U.S. Court of Appeals for the Eleventh Circuit on Friday, when lawyers debated whether the First Amendment should protect the architectural design plans for a plaintiff's house.

Plaintiff Donald Burns sued the town of Palm Beach in 2017, after its architectural commission voted down plans to turn his traditional-style, beachfront home into a larger, more modern structure with a minimalist design.

The board struck down that idea, finding the house would have been "excessively dissimilar" to and "not in harmony" with neighboring properties, but Burns claimed that wrongly restricted his rights to self expression.

The Eleventh Circuit must decide whether U.S. District Judge Beth Bloom of the Southern District of Florida was right to side with Palm Beach.

Plaintiffs counsel Laurie Webb Daniel of Holland & Knight's Atlanta office insisted that her client's home was "an expression of his persona, his philosophy, to show that he was not tied to the past."

She alleged the board's architectural code was vague and uneven in how it was applied, and argued the lower court used the wrong test to find Palm Beach didn't infringe on Burns's First Amendment rights. Daniel is handling the case with Jennifer Mansfield and Matthew Friedlander of Holland & Knight's Jacksonville and Atlanta offices.

Defense attorney Joanne O'Connor of Jones Foster in West Palm Beach urged the appellate panel to consider historical and societal context.

"Never has the exterior facade of a home been understood to be a medium through which its residents communicate with the outside world," O'Connor said.

O'Connor is handling the case with John Randolph.

Burns is the first plaintiff to attempt to apply the First Amendment to a zoning decision—which Eleventh Circuit Chief Judge Ed Carnes remarked wasn't necessarily because it didn't apply, but because nobody's "had the audacity" to take this position before.

The Eleventh Circuit looked to a case in which it ruled that a Fort Lauderdale community event for homeless people was protected by the First Amendment, despite an ordinance that banned food distribution in public parks without a permit.

Judge Robert Luck highlighted some crucial difference between the cases.

"Is your client setting up tables and distributing literature to come look at his house, so that others can see the message?" Luck said. "Did he invite groups to come share and for bus tours to come, 'Please see my house and the message that I want to convey?' Is this in a city park?"

The fate of the lawsuit could hinge on whether Burns' house would be visible to the public. While the plaintiff noted that it's next to a public beach, the defense argued it was set back from the street and that trees and shrubbery would block it from view.

The property's unusual modern design also resulted in some confusion over which part was the front or back, but O'Connor claimed the front faced the street and wouldn't be visible.

"If this house is designed to send a message, it's clearly pointing the wrong way," O'Connor said. "Any message is being sent out into a void."

But Judge Stanley Marcus challenged that assumption, noting that, "I thought the very reason neighbors objected was precisely because it was visible and it was an eyesore, not that it was hidden, but that it was obvious, it was massive and excessively dissimilar."

Daniel argued observers don't necessarily have to understand what message her client hopes to convey.

"If you look at a painting of Jackson Pollock or a 'Jabberwocky' verse of Lewis Carroll, people are going to have different understandings of the message," Daniel said. "That's common with art and artistic expression."

The appellate panel noted that if it were to rule for Burns, that could throw all zoning decisions into question, pointing to cities like Paris, France, and Coral Gables, Florida, to suggest some communities are within their right to maintain a certain architectural look.

The court is yet to rule.

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