The federal Court of Appeals for the 11th Circuit has dealt another blow to Palm Beach resident Donald A. Burns’ lawsuit that accuses the town of violating his First Amendment rights to free expression through architecture.
The court this month denied Burns’ request to hold an “en banc” hearing before the full appellate court to weigh in on a decision rendered in June by a smaller panel of 11th circuit appeals judges. Burns’ legal team had asked for the hearing after the three-judge appellate panel issued a sharply split decision that upheld a lower district court’s 2018 decision favoring the town over Burns.
Burns filed his suit in the wake of the Architectural Commission’s refusal, in 2016, to let him build a contemporary-style house to replace a more traditional one he owned at the time on an oceanfront lot at 1021 N. Ocean Blvd. As part of its denial, the commission said the house would have been “excessively dissimilar” to others in the neighborhood.
Burns’ attorneys argued the new house’s modern-style architecture would have made a constitutionally protected statement about his personal identity and outlook, which had changed over the years. The modern-style house would communicate to the world “that it is not old-fashioned; it is clean, fresh, independent, modern and different from what I, and my prior home, were in the past,” Burns said in court documents.
The town countered it was simply enforcing its zoning code by preventing an “oversized house” from being built “on a nonconforming, undersized lot,” Jones Foster attorney Joanne O’Connor, representing the town, told the Palm Beach Daily News after the June decision. She said last week she had nothing to add.
The appeals panel also rejected Burns’ argument that his 14th Amendment rights to due process were violated after the lower court failed to provide him adequate time to present evidence to support his argument. The lower court ruled in favor of the town in 2018.
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On Tuesday, Burns said in an emailed statement to the Daily News that he was disappointed in the court decision. But, he added, the “primary problem rests with the Town Council, which has never had the courage to take a stand against town officials who either use coded language, or who allow themselves to be influenced by neighbors’ coded language, to impose their viewpoint of what is ‘good’ or ‘bad’ when considering (architectural) applications from those who wish to express themselves differently. History often judges ‘excessively dissimilar’ people and buildings to have been very good neighbors.”
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