## Facts

- Donald Burns sought to demolish his existing Bermuda-style beachfront mansion in Palm Beach, Florida, and build a substantially larger, midcentury modern residence.
- The proposed two-story home was approximately 20,000 square feet and included features such as a basement garage, pool and spa, cabana, and exercise room.
- The Town of Palm Beach required design approval from its Architectural Commission (ARCOM) before construction.
- The applicable municipal standards required new structures to be “in harmony” with development in the general area and “not excessively dissimilar” to nearby structures based on architectural compatibility and related appearance factors.
- Burns revised the design multiple times (including changes to size, landscaping, and glass) during the review process.
- In September 2016, ARCOM voted 5–2 to deny the application, finding the design not in harmony with the area and excessively dissimilar from neighboring homes.
- Burns contended the design communicated messages of “lifestyle simplicity” and being “unique and different,” and that denial burdened his constitutional rights.
- Burns sued in federal court alleging First Amendment violations and Fourteenth Amendment vagueness, overbreadth/substantive due process, and equal protection violations; the district court entered summary judgment for the Town.

## Issues

1. Whether denial of the permit under aesthetics-based architectural standards violated the First Amendment by restricting protected expression allegedly embodied in the proposed residential architecture.
2. Whether the Town’s “harmony” and “excessively dissimilar” standards were unconstitutionally vague or otherwise violated the Fourteenth Amendment’s due process protections.
3. Whether Burns showed unequal treatment compared with similarly situated applicants sufficient to establish an equal protection violation.
4. Whether summary judgment was improperly granted before Burns had adequate opportunity for discovery under Rule 56(d).

## Decision

- The Eleventh Circuit affirmed summary judgment for the Town on all claims.
- The court held the proposed mansion was not protected expressive conduct because there was not a strong likelihood viewers would understand a message and the structure’s primary function was residential, not communicative.
- The court held the architectural standards were not unconstitutionally vague when read in context with the code’s listed compatibility and appearance factors.
- The court held Burns failed to produce evidence that ARCOM applied the standards differently to him than to similarly situated applicants.
- The court rejected the argument that summary judgment was premature, finding the record and opportunity for discovery sufficient.

## Legal Principles

- Conduct receives First Amendment protection as expression only when the actor intends to convey a message and there is a substantial likelihood that observers will understand that message; a primarily functional residential structure ordinarily will not satisfy this standard absent clear communicative character.
- Aesthetic land-use standards may be framed as general criteria; they are not void for vagueness if, in context, they provide reasonable notice to applicants and meaningful guidance to decisionmakers through articulated factors.
- An equal protection claim based on selective treatment requires evidence of differential treatment of similarly situated comparators (and, where required, discriminatory intent); conclusory allegations are insufficient at summary judgment.
- Rule 56(d) relief requires a concrete showing that specific discovery is needed to oppose summary judgment; courts may proceed to summary judgment where the record is adequately developed.

## Conclusion

The Eleventh Circuit upheld Palm Beach’s denial of a permit for a modernist mansion, concluding the proposed residence did not constitute protected expressive conduct, the Town’s aesthetics-based standards provided constitutionally sufficient guidance, and the applicant failed to show disparate treatment or entitlement to additional discovery before summary judgment.


Burns v. Town of Palm Beach, 999 F.3d 1317 (11th Cir. 2021)