Burns v. Town of Palm Beach

United States Court of Appeals for the Eleventh Circuit · 2021 · Property

999 F.3d 1317 (2021)

Updated July 19, 2026

Propertyexpressive conductarchitecturebuilding permitarchitectural review commissionzoningvoid for vaguenessclass of one

Facts

Burns sought to demolish his existing beachfront mansion and replace it with a much larger two-story midcentury modern mansion. Palm Beach required approval from its architectural review commission, which reviewed applications under ordinance criteria including harmony with nearby development and whether the structure was excessively dissimilar to structures within 200 feet in architecture, arrangement, mass, and related design features. Burns’s plans included heavy landscaping, a wall, and a louvered gate intended to screen the house from the street and neighbors. The commission denied the permit, finding the proposal not in harmony with the area and excessively dissimilar under specified ordinance criteria.

Issue

Whether the district court prematurely granted summary judgment, whether Burns’s proposed residential architecture was expressive conduct protected by the First Amendment, whether the ordinance criteria were unconstitutionally vague under the Fourteenth Amendment, and whether Burns proved a class-of-one equal protection violation.

Rule

Under Rule 56(d), a nonmovant must specifically demonstrate how additional discovery will reveal facts creating a genuine issue of material fact; vague assertions or general discovery categories are insufficient. Under Johnson and Spence, conduct is protected expressive conduct only if the actor intended to convey a message and there is a great likelihood that viewers would understand some sort of message from the conduct. For civil economic and zoning regulations, a less strict vagueness test applies, and such a law is void only if it provides no real rule or standard or authorizes arbitrary enforcement. A class-of-one equal protection claimant in a zoning case must show intentional different treatment from others prima facie identical in all relevant respects and no rational basis for the difference.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Savannah, Georgia, Lena Ortiz sued the City of Savannah after a design board denied her permit to build a new residence. Before discovery, the city moved for summary judgment, and Lena filed a Rule 56(d) declaration stating that she needed discovery into the board's files, legislative history, and possible depositions to oppose the motion.

If Lena's declaration does not identify what specific facts those materials are expected to reveal or how they would create a genuine dispute of material fact, how should the court most likely rule on her request for more time?

Explanation. Under the majority opinion, a Rule 56(d) request fails if it relies on vague categories of discovery rather than specifically demonstrating what facts further discovery will uncover and how those facts will rebut the movant's showing. General references to files, legislative history, experts, or depositions are insufficient.