# Donald Burns v. Town of Palm Beach > Court of Appeals for the Eleventh Circuit · June 8, 2021 · 999 F.3d 1317 URL: https://www.frixlaw.com/law-library/cases/4693683 ## Case - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** June 8, 2021 - **Citations:** 999 F.3d 1317 - **Precedential status:** Published - **Opinion:** Opinion - **Nature of suit:** NEW - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4693683 ## How later opinions describe it (automated extraction) - finding that the district court did not abuse its discretion when a movant “had ample time after [R]ule 56(d) declaration to obtain the discovery he needed, and he did not renew his request for further discovery” - noting that the First Amendment protects conduct intended to convey a particularized message with a likelihood that the message would be understood by those who viewed it ## Opinion text USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 1 of 136 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14515 ________________________ D.C. Docket No. 9:17-cv-81152-BB DONALD BURNS, Plaintiff-Appellant, versus TOWN OF PALM BEACH, a Florida municipal corporation, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (June 8, 2021) Before LUCK, ED CARNES, and MARCUS, Circuit Judges. LUCK, Circuit Judge: Donald Burns wants to knock down his “traditional” beachfront mansion and build a new one, almost twice its size, in the midcentury modern style. The new USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 2 of 136 mansion, Burns says, will reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. The new two-story mansion will have a basement garage, outdoor pool and spa, cabana, and exercise room. To build his new mansion, Burns had to get the approval of the Town of Palm Beach’s architectural review commission. Palm Beach created the commission to review building permit applications to make sure new structures were “in harmony with the proposed developments on land in the general area” and “not excessively dissimilar in relation to any other structure existing . . . within 200 feet of the proposed site in respect to . . . [a]rchitectural compatibility[,] . . . [a]rrangement of the components of the structure[,] . . . [a]ppearance of mass from the street,” and “[d]iversity of design that is complimentary with the size and massing of adjacent properties.” In other words, the town doesn’t want elephants next to poodles. Or, as the town explained in its findings creating the commission, Palm Beach “has become a worldwide synonym for beauty, quality and value” and the “essential foundation of beauty in communities is harmony.” “The task of the architectural commission is . . . to preserve various elements of urban beauty and require that new projects enhance the existing elements” in order “to achieve a pleasant and comprehensive cohesiveness in community development.” 2 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 3 of 136 Applying its criteria, the architectural review commission denied Burns’s building permit. The commission found that his new mansion was not in harmony with the proposed developments on land in the general area and was excessively dissimilar to other homes within 200 feet in terms of its architecture, arrangement, mass, and size. Burns sued the town, claiming that the criteria the commission used to deny his building permit violated his First Amendment free speech rights and his Fourteenth Amendment rights to due process and equal protection. The district court granted summary judgment for the town. We conclude that summary judgment was not granted too early and affirm on the First Amendment claim because there was no great likelihood that some sort of message would be understood by those who viewed Burns’s new beachfront mansion. We also affirm the summary judgment on the Fourteenth Amendment claims because the commission’s criteria were not unconstitutionally vague and Burns has not presented evidence that the commission applied its criteria differently for him than for other similarly situated mansion- builders. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Palm Beach’s Architectural Review Commission Palm Beach created its architectural review commission because the town is “internationally known . . . for beauty, quality and value” and “beautiful 3 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 4 of 136 communities can be created only through a deliberate search for beauty on the part of the community leadership, architects, planners, realtors and the building industry.” Town of Palm Beach, Fla., Code § 18-146(a)–(b). 1 The “essential foundation of beauty in communities,” the town found, “is harmony.” Id. § 18- 146(e). “The plan for achieving beauty must grow out of special local characteristics of site, aesthetic tradition and development potential.” Id. The commission was directed to “preserve various elements of urban beauty and require that new projects enhance the existing elements.” Id. § 18-146(d). Palm Beach’s “intent,” it made clear, was “to achieve a pleasant and comprehensive cohesiveness in community development.” Id. § 18-146(e). There are seven commissioners on the architectural review commission. Id. § 18-166(a). The commissioners must be “specially qualified” by “training or experience in art, architecture, community planning, land development, real estate, landscape architecture, or other relevant business or profession, or by reason of civic interest and sound judgment to judge the effects of a proposed building upon the desirability, property values and development of surrounding areas.” Id. § 18- 167(a). No less than two, but no more than three, commissioners must be Florida- 1 The dissenting opinion uses the name “ARCOM” for the architectural review commission and then calls the name it uses “Orwellian.” Dissenting Op. at 72. If by Orwellian the dissenting opinion means any government agency that administers regulations impacting our lives, then the architectural review commission is as Orwellian as the state board of therapeutic massage, the local dog catcher, and every one of the alphabet soup of departments and agencies and bureaus in Washington, D.C. 4 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 5 of 136 registered architects. Id. § 18-166(a). And one commissioner must be a landscape architect or a “master gardener.” Id. Except for minor changes and changes to historic buildings, all applications for demolition and construction in the town must be approved by the commission. Id. § 18-175(a). The commission reviews an application for a building permit based on the criteria in section 18-205(a) of the town’s code. Id. If an applicant meets the criteria, the commission “shall” approve the application. Id. § 18-205(b). Section 18-205(a) identifies ten criteria for the commission to consider: (1) The plan for the proposed building or structure is in conformity with good taste and design and in general contributes to the image of the town as a place of beauty, spaciousness, balance, taste, fitness, charm and high quality. (2) The plan for the proposed building or structure indicates the manner in which the structures are reasonably protected against external and internal noise, vibrations, and other factors that may tend to make the environment less desirable. (3) The proposed building or structure is not, in its exterior design and appearance, of inferior quality such as to cause the nature of the local environment to materially depreciate in appearance and value. (4) The proposed building or structure is in harmony with the proposed developments on land in the general area, with the comprehensive plan for the town, and with any precise plans adopted pursuant to the comprehensive plan. (5) The proposed building or structure is not excessively similar to any other structure existing or for which a permit has been issued or to any other structure included in the same permit application within 200 feet of the proposed site in respect to one or more of the following features of exterior design and appearance: 5 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 6 of 136 a. Apparently visibly identical front or side elevations; b. Substantially identical size and arrangement of either doors, windows, porticos or other openings or breaks in the elevation facing the street, including reverse arrangement; or c. Other significant identical features of design such as, but not limited to, material, roof line and height of other design elements. (6) The proposed building or structure is not excessively dissimilar in relation to any other structure existing or for which a permit has been issued or to any other structure included in the same permit application within 200 feet of the proposed site in respect to one or more of the following features: a. Height of building or height of roof. b. Other significant design features including, but not limited to, materials or quality of architectural design. c. Architectural compatibility. d. Arrangement of the components of the structure. e. Appearance of mass from the street or from any perspective visible to the public or adjoining property owners. f. Diversity of design that is complimentary with size and massing of adjacent properties. g. Design features that will avoid the appearance of mass through improper proportions. h. Design elements that protect the privacy of neighboring property. (7) The proposed addition or accessory structure is subservient in style and massing to the principal or main structure. (8) The proposed building or structure is appropriate in relation to the established character of other structures in the immediate area or neighboring areas in respect to significant design features such as material or quality or architectural design as viewed from any public or private way (except alleys). (9) The proposed development is in conformity with the standards of this Code and other applicable ordinances insofar as the location and appearance of the buildings and structures are involved. 6 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 7 of 136 (10) The project’s location and design adequately protects unique site characteristics such as those related to scenic views, rock outcroppings, natural vistas, waterways, and similar features. Id. § 18-205(a). Burns’s New Mansion For the last eighteen years, Burns has been living in his 10,063 square foot mansion—which he describes as a “traditional home”—on the Atlantic Ocean in Palm Beach. But in 2013, Burns decided he wanted to knock down the “traditional home” so he could build a new mansion in the midcentury modern style to convey the evolution of his personal philosophy. He wanted his new mansion “to be a means of communication and expression of the person inside: Me.” He picked a design of international or midcentury modern architecture because it emphasized simple lines, 7 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 8 of 136 minimal decorative elements, and open spaces built of solid, quality materials. According to Burns, the midcentury modern design communicated that the new home was clean, fresh, independent, and modern—a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. It also communicated Burns’s message that he was unique and different from his neighbors. Burns initially submitted a plan to the town council that proposed demolishing his existing 10,063 square foot mansion and building in its place a 25,198 square foot mansion in the midcentury modern design. His emphasis on fewer personal possessions included two stories and a basement containing a five-car garage, wine storage area, and steam room. The first floor would have an open-air entry, guest rooms, dining room, kitchen, family room, powder rooms, and living room. The open-air entry would lead to the pool, spa, and cabana. The second floor would have more guest rooms, an exercise room, and the master bedroom. At the council’s meeting on the application, Burns’s landscape architect testified that the “most important design criteri[on],” as directed by Burns, was “to screen th[e] house properly, and more than adequate.” The landscaper proposed curtaining the house from the public road with heavy landscaping, including a sixteen-to-eighteen-foot-tall hedge and a large specimen of trees. The design also called for landscaping to buffer the new mansion from Burns’s northern and southern 8 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 9 of 136 neighbors. After some of Burns’s neighbors opposed the plan, the town council deferred action until the architectural review commission considered the building permit. At the commission’s May 25, 2016 meeting, Burns presented the testimony of his landscaper, attorney, architects, and expert architectural witness, David Chase. The landscaper told the commission about the “much more dense” landscaping that the new design would implement compared with Burns’s current mansion. Facing the street, Burns proposed planting a “tall, green callifolium wall or hedge” to “separate” the “street from the house and provide screening and a buffer.” The design would also stagger coconut palms in between the house and the street. To “block views from the neighbors to the north,” Burns would plant a fourteen-to- sixteen-foot-tall hedge, coconut palms at least thirty-two feet tall, and eighteen-to- twenty-two-foot-tall grey wood trees. The design called for similar landscaping on the south side. Burns’s architectural expert, Chase, submitted a report and testified about the architectural styles in Palm Beach and previous applications that the commission had approved. The report identified fifteen midcentury modern design applications, other than Burns’s, that the commission considered from 1979 to 2016. Chase documented the commission’s deliberations on each application and some of the individual commissioners’ statements about the designs. He compared the 9 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 10 of 136 commissioners’ observations to the eight design features in section 18-205(a)(6) and categorized the commission’s reception as good, bad, or no comment for each criterion. He also identified where a commissioner found a design feature “excessively dissimilar” in relation to nearby structures. The commission had approved fourteen applications and denied one. Chase gave his professional opinion that Burns’s design met the commission’s criteria in section 18-205(a)(6). At the meeting, Burns’s neighbors told the commission that the new mansion was too large for the lot, too dissimilar with the neighborhood, had inappropriate glass-to-mass ratios, and invaded their privacy. The commission approved the demolition but voted to defer its decision on the building permit. At the commission’s August 24, 2016 meeting, Burns presented a revised design. Burns reduced the square footage of his new mansion by twenty-two percent—to 19,594 square feet—but kept similar plans for the landscaping. His neighbors again testified in opposition to the plan. And the commission again deferred its decision. At the commission’s next meeting, on September 28, 2016, Burns presented another revised plan. 10 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 11 of 136 (behind the wall) Among other changes, and to alleviate some of the concerns, he added a limestone wall between the front of the mansion and Ocean Boulevard (the residential street in front of the home) with a louvered gate. The gate had angled vertical slats (the louvers) spaced at regular intervals across its length to allow for air and light to come 11 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 12 of 136 through. The angle of the louvers prevented anyone driving north on Ocean Boulevard from seeing the house. Drivers headed south would not see the house because of the heavy landscaping on the other side of the gate. Even with the changes, the commission voted five-to-two to deny his application. The commission explained why it denied the building permit based on the section 18-205(a) criteria: (4) The proposed building or structure is not in harmony with the proposed developments on land in the general area, with the comprehensive plan for the town, and with any precise plans adopted pursuant to the Comprehensive Plan. ... (6) The proposed building or structure is excessively dissimilar in relation to any other structure . . . within 200 feet of the proposed site in respect to . . . (c) Architectural compatibility. (d) Arrangement of the components of the structure. (e) Appearance of mass from the street or from any perspective visible to the public or adjoining property owners. (f) Diversity of design that is complimentary with size and massing of adjacent properties. . . . [and] (8) The proposed development is not in conformity with the standards of this Code and other applicable ordinances insofar as the location and appearance of the buildings and structures are involved. Burns Sues Palm Beach in Federal District Court Burns could have appealed the commission’s decision to the town council and then the state circuit court. See Town of Palm Beach, Fla., Code §§ 18-177, 134- 173. Instead, Burns sued Palm Beach in federal district court under 42 U.S.C. section 1983. In his two-count complaint, Burns brought a Fourteenth Amendment due process void-for-vagueness challenge and an equal protection challenge to 12 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 13 of 136 section 18-146 (the section explaining the town’s findings and purpose for creating the architectural review commission) and section 18-205(a) (the section with the commission’s criteria for approving building permits) of the town’s ordinances. Burns also alleged that the two ordinances violated his First Amendment right to speak through the midcentury modern design of his new mansion. Burns claimed that the ordinances violated his constitutional rights both on their face and as applied to him. Before discovery, Palm Beach moved to dismiss Burns’s complaint for failure to state a claim and for summary judgment. Burns responded on the merits and, consistent with Federal Rule of Civil Procedure 56 and the local rules, filed affidavits in opposition to the motion and a statement of material facts. Burns also submitted a declaration under rule 56(d)2 that identified several areas of discovery he needed so he could respond to the town’s summary judgment motion. Burns told the district court that he wanted discovery on the records of the commission’s hearings to show its lack of discernable standards, to get the legislative history of the relevant ordinances and the commission’s rules and regulations, to hire an expert, and, “[d]epending on the documents obtained,” to take depositions. 2 Federal Rule of Civil Procedure 56(d) provides, “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). 13 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 14 of 136 While the summary judgment motion was pending, discovery continued. Burns filed supplemental documents and exhibits opposing summary judgment. And the district court, at the parties’ request, extended the discovery deadline three times. Palm Beach’s summary judgment motion was referred to the magistrate judge. The magistrate judge held a hearing on the motion about six months after it was filed but before the close of discovery. The magistrate judge asked Burns whether he was ready on the summary judgment motion, and Burns said he was “ready to proceed . . . on the facial claim[s],” but “want[ed] to be able to complete discovery” before a decision on the as-applied claims. Burns said he wanted to submit expert testimony on architecture as an art form, but he noted that he had already submitted other evidence showing that architecture was art and there was no dispute that it was. Burns also told the magistrate judge that he wanted transcripts of the commission meetings because Palm Beach had objected that Burns’s summaries were hearsay. Two months later, the magistrate judge recommended granting Palm Beach’s summary judgment motion. The magistrate judge first said that Burns had waived any objection that summary judgment was premature because he opposed Palm Beach’s motion on the merits. And Burns did not have standing to challenge section 18-146 (the findings and purpose section) because he was not injured by that ordinance. 14 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 15 of 136 As to Burns’s First Amendment claim against the commission’s criteria in section 18-205(a), the magistrate judge adopted the three-part predominant-purpose test from Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) for determining whether the new mansion was constitutionally protected speech. The predominant-purpose test asks whether: (1) the owner of the structure subjectively intended to communicate a message; (2) the predominant purpose of the structure was to communicate a message; and (3) a reasonable observer viewing the structure in its surrounding context had a great likelihood of understanding it to be predominantly communicating some message. The town conceded that Burns intended to communicate a message, so that wasn’t an issue. After reviewing the summary judgment evidence, the magistrate judge found that the predominant purpose of Burns’s mansion was nonexpressive because the design—with its two stories, basement garage, numerous bedrooms and bathrooms, pool, oceanfront views, privacy wall, and heavy landscaping— demonstrated that the “structure [was] to serve as a residence, not as a piece of visual art.” And any message from the mansion would be ambiguous, according to the magistrate judge, because of its residential features and because, even though the mansion was a custom design, a reasonable viewer would not infer that the design sent a message. Rather, a viewer might think that the owner liked the architecture, wanted a different style from his neighbors, or believed the house would be more 15 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 16 of 136 hurricane resistant. Because the design was nonexpressive, the magistrate judge found that the First Amendment did not apply. As to Burns’s vagueness claim, the magistrate judge applied “less exacting scrutiny” because section 18-205(a) did not implicate any fundamental rights. The magistrate judge explained that the commission’s criteria were not vague because the ordinance listed specific design elements to compare a proposed structure to others in the area and identified “architectural compatibility” and “harmony” with nearby structures as guidelines for a design. As to Burns’s equal protection claim, the magistrate judge said that Burns had failed to present evidence of similarly situated building permit applications that Palm Beach treated differently than his, so his class-of-one claim failed. Burns objected to the magistrate judge’s report and recommendation, but only as to his claims challenging the constitutionality of the architectural review commission’s criteria for issuing a building permit in section 18-205(a). Burns argued that the magistrate judge: erred in recommending summary judgment before the close of discovery; analyzed his free speech claim using the wrong test; and erred in recommending that his vagueness and equal protection claims should be denied. Burns also filed two expert reports opining on the communicative aspects of architecture. 16 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 17 of 136 The district court overruled Burns’s objections and adopted the magistrate judge’s report. The district court agreed that Burns had waived any objection to an early summary judgment because he fully briefed a response to Palm Beach’s motion and participated in oral argument. And even if he didn’t waive the objection, the district court concluded that Burns did not meet rule 56(d)’s standard because he did not specifically identify what facts he would discover to oppose the motion. Rather, his declaration only identified “general categories of discovery that would be sought.” The district court also explained that Burns gave no reason why he could not obtain the discovery in the months between the filing of his declaration and the hearing. As to Burns’s First Amendment claim, the district court agreed that the three- part predominant-purpose test applied and that the primary purpose of Burns’s new mansion was to be his residence. Because Burns designed the residence to be concealed from the public by a privacy wall and heavy landscaping, the district court also concluded that a reasonable observer would not have a great likelihood of understanding that the mansion communicated a message. As to Burns’s vagueness claim, the district court agreed that section 18-205(a)’s criteria and reference to design elements were understandable to an ordinary person and prevented arbitrary and discriminatory enforcement. Finally, as to Burns’s equal protection claim, the district court agreed with the magistrate judge that Burns had not presented evidence 17 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 18 of 136 of comparator mansions, “identical in all relevant respects” to his design, that were approved by the commission. Burns appeals the summary judgment for Palm Beach. STANDARDS OF REVIEW “We review the district court’s denial of a [r]ule 56[(d)] motion under the abuse of discretion standard.” Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315 (11th Cir. 1990). 3 “We review the district court’s grant of summary judgment de novo.” Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1239 (11th Cir. 2018) (emphasis omitted). And we review questions of constitutional law de novo. Id. Because “the reaches of the First Amendment are ultimately defined by the facts it is held to embrace,” we must “decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection.” Flanigan’s Enters., Inc. of Ga. v. Fulton Cnty., Ga., 596 F.3d 1265, 1275 (11th Cir. 2010) (internal quotation marks omitted). To do that in First Amendment free speech cases, “the Supreme Court has instructed us to make an independent examination of the whole record, and has recognized our ultimate 3 “When [r]ule 56 was rewritten in 2010, [the rule 56(f)] provisions were moved to a new subdivision (d), without any substantial change. Thus, precedent prior to 2010 citing [r]ule 56(f) is fully applicable to current [r]ule 56(d).” 10B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2740 (4th ed. 2020); see also City of Miami Gardens v. Wells Fargo & Co., 931 F.3d 1274, 1287 (11th Cir. 2019) (applying old rule 56(f) precedent to a rule 56(d) challenge). 18 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 19 of 136 power . . . to conduct an independent review of constitutional claims when necessary.” Id. (quotation omitted; omission in original). While the dissenting opinion agrees that we have done as instructed by independently examining the whole record before us in this appeal, it questions our conclusion because “[t]raditionally, this power is used to protect rights from government encroachment” and not, as it claims we have done, “to curtail the freedom of expression.” Dissenting Op. at 73. Our narrow and fact-specific conclusion does not curtail the freedom of expression. And the standard of review in First Amendment free speech cases isn’t a one-way rachet. It is result-neutral. We reject the dissenting opinion’s suggestion that an independent examination of the whole record can only, and will always, reach the conclusion that the challenged expression is protected and never that it’s not. Our First Amendment free speech decisions do not support the dissenting opinion’s view that under the independent “whole record” standard of review, we “traditionally” find protected expression and a First Amendment violation. For example, in ACLU of Florida, Inc. v. Miami-Dade County School Board, 557 F.3d 1177 (11th Cir. 2009), after independently examining the whole record to find the facts, we rejected the plaintiffs’ First Amendment challenge to the school board’s decision to remove a book from its libraries. We did so after finding for ourselves the motivation of the board’s decision. Id. at 1207 (“Our review of the record leads 19 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 20 of 136 us to the conclusion that under the Pico standard we are assuming applies, the Board members did not remove books from school library shelves simply because they dislike[d] the ideas contained in those books and [sought] by their removal to prescribe what shall be orthodox in politics . . . or other matters of opinion.” (internal quotation marks omitted; alterations and omissions in original)). In Flanigan’s, we independently examined the whole record before rejecting the plaintiffs’ claim that the county’s nude dancing ordinance violated their free speech rights. We rejected it because we found that “it was reasonable for the [c]ounty to rely on the voluminous evidence before it—including the many findings of the July 2001 report, the numerous foreign studies appended to it, and the live testimony of the chief of police and the chief judge of the juvenile court.” 596 F.3d at 1279–80. And in Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051 (11th Cir. 1987), we independently examined the whole record before rejecting the plaintiffs’ claim that the city’s sign ordinance violated their free speech rights. We rejected it because we found that “the record sufficiently supports the [c]ity’s judgment that the regulation of portable signs will help to eliminate visual clutter and thereby further the [c]ity’s interest in improving the visual character of the [c]ity.” Id. at 1053 (footnote omitted). In all of those cases the plaintiffs claimed that their First Amendment free speech rights were being violated by “government encroachment.” In all of those cases we, as the reviewing court, made an independent examination of the whole 20 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 21 of 136 record. And in all of these cases, based on our review of the whole record, we held that the alleged “government encroachment” did not violate the First Amendment. Here, we do no more and no less than what we have “[t]raditionally” done in Don’s Porta, ACLU of Florida, and Flanigan’s. The “irony today” is not, as the dissenting opinion says, that we have done as the Supreme Court has instructed and conducted an independent examination of the whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The “irony today” is that it is the dissenting opinion that goes beyond the “whole record” in this case, the record developed by the parties and put before the district court. The dissenting opinion consults extra-record sources and draws from them the “facts” that it determines support its conclusion. Throughout the dissenting opinion, it laments the “incomplete record” and the “limited record” that’s before us. Id. at 74, 123 n.5. So, the dissenting opinion escapes the confines of the record to look for evidence that the parties never put forward and the district court never considered. It discusses: • Walter Gropius’s home in Massachusetts, Frank Lloyd Wright’s Fallingwater in Pennsylvania, John Yeon’s Watzek home in Oregon, Philip Johnson’s Glass House in Connecticut, Charles and Ray Eames’ home in California, John Lautner’s Schaffer home in California, and Eero Saarinen’s Miller home in Indiana, id. at 90–91; 21 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 22 of 136 • Richard Wagner, id. at 85; • The ruins of the Roman Forum, id.; • Hitler’s relationship with Albert Speer and Napoleon III’s relationship with Baron Georges-Eugène Haussmann, id. at 86; • Thomas Jefferson’s views on architecture, id. at 86–87, 89; • The U.S. Capitol, id. at 87; • Versailles, the Winter Palace, and Schönbrunn Palace, id. at 88; and • The history of the International Style, id. at 89–90. 4 The dissenting opinion doesn’t stop there. It also relies on trade journals, articles, and websites that were not, and are not, part of the actual record in this case: • Burford Pickens, Mr. Jefferson as Revolutionary Architect, 34 J. of the Soc’y of Architectural Historians 257 (1975), id. at 87, 89; • Monticello and the University of Virginia in Charlottesville: World Heritage Site, National Park Service, https://www.nps.gov/articles/000/monticello-and-the-university-of- virginia-world-heritage-site.htm, id. at 89; 4 Much of the dissenting opinion’s extra-record facts have nothing to do with residential architecture. Wagner designed a theater. Dissenting Op. at 85. Jefferson, in his letter to Madison, was discussing “public buildings.” Id. at 86. And the U.S. Capitol is the seat of our federal government. Id. at 87. 22 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 23 of 136 • Jess R. Phelps, Preserving National Historic Landmarks?, 24 N.Y.U. Envtl. L.J. 137 (2016), id. at 91 n.1; • Susan L. Buck, A Material Evaluation of the Gropius House: Planning to Preserve a Modern Masterpiece, 28 APT Bulletin: The J. of Preservation Tech. (1997), id. at 120, 135; and • Daisy Alioto, Elizabeth Gordon’s International Style, Curbed (May 10, 2017), https://archive.curbed.com/2017/5/10/15592658/elizabeth- gordon-house-beautiful-frank-lloyd-wright, id. at 135. None of these extra-record facts and sources the dissenting opinion relies on are part of the actual record in this case. They were not part of the actual record before the magistrate judge and the district court; they were not part of the discovery materials; and they were not part of Burns’s expert reports. Not coincidentally, the dissenting opinion’s extra-record facts and sources all seem to favor its legal position. The dissenting opinion says not to worry because its extra-record materials are “common knowledge.” Id. at 92. But we’re not talking about Washington crossing the Delaware or the Beatles’ greatest hits. The history of residential architecture in the United States and the midcentury modern style is anything but common. Burns needed three architectural experts to explain why his beachfront mansion met the commission’s criteria and was protected by the First Amendment, and we only use experts where their “scientific, technical, or other specialized 23 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 24 of 136 knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). If the deep dive into the founding of the midcentury modern style was common knowledge, there would be no need for the “scientific, technical, or other specialized knowledge” of three experts. More importantly, what the dissenting opinion does is not what the Supreme Court instructed us to do. It did not instruct us to look outside the actual record in the case to whatever sources we could find to support the proposition that there had been (because there must be) a First Amendment violation. Dissenting Op. at 72– 73. Instead, the Supreme Court instructed us to independently examine the actual record in the case, not go outside it, to find the facts to decide the First Amendment issue. We are to do that even if we think that the record developed by the attorneys during discovery and reviewed by the district court is frustratingly “incomplete” and “limited.” And that is what we, unlike the dissenting opinion, have done. As a final way to shore up the “incomplete” record and get to the result it wants to reach, the dissenting opinion says it may take judicial notice of the registry of national historic landmarks. Id. at 91 n.1. But the limited power of an appellate court to judicially notice historical facts on its own—that were not in the summary judgment record and that the parties have not asked us to judicially notice—does not extend to creating summary judgment evidence for our preferred litigant and then using the newly created evidence to find facts in his favor. That’s not the way 24 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 25 of 136 appellate review works. See Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006) (“In deciding issues on appeal we consider only evidence that was part of the record before the district court.”); Callahan v. U.S. Dep’t of Health & Human Servs., 939 F.3d 1251, 1266 (11th Cir. 2019) (“We are, after all, a court of review, not a court of first view.”). And even if appellate review did work that way, and we took judicial notice of the national historic landmark registry, the notice would only include the regulatory criteria, the homes on the list, and the date they became national historic landmarks. The historical details and the architectural descriptions that the dissenting opinion relies on in its summary judgment analysis are not on the registry and would not be judicially noticed. DISCUSSION Burns makes the same arguments on appeal that he made before the district court. He contends that the district court abused its discretion by granting summary judgment prematurely, erred in applying the predominant-purpose test to his First Amendment free speech claim (which led it to reach the wrong result), and erred in denying his vagueness and equal protection claims. Rule 56(d) Burns argues that he diligently pursued discovery, but that the district court did not give him enough time before granting summary judgment. He contends that he properly objected to the early summary judgment by filing his rule 56(d) 25 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 26 of 136 declaration identifying his need for additional discovery and the categories of discovery he still needed. Under rule 56(d), a court may “defer” or “deny” a motion for summary judgment, allow additional time for discovery, or issue an appropriate order “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). “Failure to satisfy [the rule 56(d)] burden is fatal to an argument that the district court granted summary judgment prematurely by failing to order or await the results of further discovery.” City of Miami Gardens, 931 F.3d at 1286. To invoke rule 56(d), “a party ‘may not simply rely on vague assertions that additional discovery will produce needed, but unspecified facts,’ but ‘must specifically demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.’” Id. at 1287 (quoting Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989)). Burns’s rule 56(d) declaration failed to “specifically demonstrate” how discovery would show a genuine issue of fact. See id. As the district court explained, Burns only listed general categories of discovery without pointing to the specific facts that discovery would reveal and how those facts would create a genuine issue of material fact. He didn’t explain why he needed legislative history materials, 26 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 27 of 136 expert testimony, and potential depositions. The closest Burns got was his request for commission records, which, he said, would show the lack of discernable standards used by the commission in making its decisions. But “vagueness is a question of law for the judge, and not the jury, to determine,” Konikov v. Orange Cnty., 410 F.3d 1317, 1330 (11th Cir. 2005), and Burns gave no indication how commission records would aid his as-applied challenge. He had already filed the transcripts of the commission’s meetings related to his application, and he conceded that he did not need further discovery on his facial claims. “[T]he district court had all the information necessary to rule on the legal issues, and [Burns] raised no genuine question of material fact that would have precluded summary judgment.” See Artistic Ent., Inc. v. City of Warner Robins, 331 F.3d 1196, 1202 (11th Cir. 2003). The district court also did not abuse its discretion because Burns had ample time after his rule 56(d) declaration to obtain the discovery he needed, and he did not renew his request for further discovery. After Burns filed his declaration, the district court gave him five months of discovery before the magistrate judge held a hearing on the summary judgment motion. The district court, at the parties’ request, continued the discovery deadline three times. Burns used the extra time to supplement his response and file new exhibits. After the magistrate judge’s hearing, Burns was invited to supplement his response again, which he did. 27 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 28 of 136 Burns never renewed his rule 56(d) objection. Not after the district court granted three extensions of the discovery deadline. Not after Burns supplemented his summary judgment response. Not before the magistrate judge’s hearing. And not after the hearing when he again supplemented his response. At the hearing, when the magistrate judge brought up discovery, Burns mentioned he wanted an expert on whether architecture was art and transcripts of the commission’s hearings. Burns also said, in his post-hearing filings, that he sought more discovery and transcripts of the commission’s hearings. But Burns conceded that there was no factual dispute about whether architecture was art. And Burns never told the magistrate judge what disputed facts the commission’s transcripts would show. Burns did not tell the magistrate judge, as he was required to do under rule 56(d), how the transcripts would “rebut the movant’s showing of the absence of a genuine issue of fact.” See City of Miami Gardens, 931 F.3d at 1287 (citation and internal quotation marks omitted). Burns argues that “the [r]ule 56(d) analysis should be measured based upon the amount of time for discovery prior to the summary judgment motion being filed, not the amount of time that had transpired at the time the trial court took up the motion.” But this is wrong for two reasons. First, the text of the rule directly contradicts that argument, as it allows for additional “time . . . to take discovery” in “opposition” to what must be an already-filed motion. Fed. R. Civ. P. 56(d)(2). 28 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 29 of 136 Second, Florida Power & Light Co. (the case Burns cites) makes clear that the rule 56(d) time is measured from when summary judgment is entered, not, as he contends, from when the summary judgment motion is filed. See 893 F.2d at 1316 (“Before entering summary judgment the district court must ensure that the parties have an adequate opportunity for discovery.” (emphasis added)). The district court here allowed ten months (with extensions of discovery deadlines in between) from the filing of the motion until it adopted the magistrate judge’s report and recommendation and granted summary judgment. It allowed Burns an adequate opportunity for discovery. First Amendment Claim The parties raise three issues with Burns’s First Amendment claim: (1) Can residential architecture ever be expressive conduct protected by the First Amendment? (2) If so, what First Amendment test do we use to analyze whether a home is expressive conduct? And (3) applying the proper test, is Burns’s new mansion expressive conduct protected by the First Amendment? Burns contends that custom-designed residential architecture communicates a form of expressive conduct unique to the homeowner, like his lifestyle choices, political stances, and individuality. Because the commission’s criteria in section 18-205(a) restricted his expressive conduct, Burns argues that they had to meet the Supreme Court’s two- part test in Texas v. Johnson, 491 U.S. 397 (1989). Applying the Johnson test, Burns 29 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 30 of 136 contends that building his new mansion was expressive conduct entitled to First Amendment protection. Palm Beach, on the other hand, argues that residential architecture is not expressive conduct because, whatever its artistic elements, those elements can’t be separated from the home’s predominant and primary purpose as a place to sleep, eat, and live. To the extent that it can be expressive conduct, Palm Beach asks us to apply the district court’s three-part predominant purpose test adopted from Mastrovincenzo. Under that test, Burns’s mansion was not expressive because its predominant purpose, as shown by its location, design, and use, was to serve as a residence. Because we conclude that, even under the easier-to-meet Johnson test, Burns’s new mansion was not expressive conduct protected by the First Amendment, we do not decide, and save for another day, the harder issues of whether residential architecture can ever be expressive conduct and, if so, what is the proper First Amendment test. We assume that Johnson controls and apply it here to Burns’s new mansion. Despite saying that we are not deciding whether residential architecture can be expressive conduct protected by the First Amendment, the dissenting opinion accuses us of deciding the exact opposite: that residential architecture can never be expressive conduct. Dissenting Op. at 74 (the majority “virtually ensures that no 30 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 31 of 136 piece of residential architecture will ever garner First Amendment protection”); id. at 116 (“Burns’s house does not present the same circumstances, nor is it likely that any piece of residential architecture would ever do so.”). The dissenting opinion is wrong about what we have—and haven’t—decided today. To dispel any lingering confusion, we emphasize again that we are not deciding whether residential architecture can ever be expressive conduct protected by the First Amendment. We have not decided, as the dissenting opinion says, that Philip Johnson’s Glass House isn’t expressive conduct but tattooing is; we have not decided that Jefferson’s Monticello isn’t protected under the First Amendment but nude dancing is; and we have not decided that the Empire State Building doesn’t meet the Johnson test but elevator music does. Id. at 93. Not at all. Burns’s First Amendment claim challenges the criteria the architectural review commission used to deny the building permit for his new beachfront mansion. As part of our independent examination of the actual record in this case, we will dig deeply into Burns’s plans for his new mansion and his dealings with the commission to see whether the new mansion meets the Johnson test for expressive conduct (it doesn’t). Because our review is limited to the actual record in this case, which is about Burns’s proposed mansion, this opinion says nothing about the expressive conduct of national historical landmarks, the homes of our founding fathers and mothers, and the world’s most iconic skyscrapers. 31 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 32 of 136 * * * “In determining whether the government has violated free speech rights, the initial inquiry is whether the speech or conduct affected by the government action comes within the ambit of the First Amendment.” One World One Fam. Now v. City of Miami Beach, 175 F.3d 1282, 1285 (11th Cir. 1999). “Constitutional protection for freedom of speech ‘does not end at the spoken or written word.’” Fort Lauderdale, 901 F.3d at 1240 (quoting Johnson, 491 U.S. at 404). Rather, the First Amendment offers safeguards for “expressive conduct, as well.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (internal quotation marks omitted). To determine “whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” the two-part Johnson test asks: (1) “whether ‘[a]n intent to convey a particularized message was present,’” and (2) whether “the likelihood was great that the message would be understood by those who viewed it.” Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974)); see also Fort Lauderdale, 901 F.3d at 1240. “[A] ‘narrow, succinctly articulable message is not a condition of constitutional protection’ because ‘if confined to expressions conveying a “particularized message” the First Amendment would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’” 32 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 33 of 136 Fort Lauderdale, 901 F.3d at 1240 (cleaned up) (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995)). So, in applying the second factor, “we ask whether the reasonable person would interpret [the conduct] as some sort of message, not whether an observer would necessarily infer a specific message.” Holloman, 370 F.3d at 1270. Palm Beach conceded to the magistrate judge, and does not dispute on appeal, that Burns had the intent to convey a message.5 But Burns cannot meet Johnson’s second element. A reasonable viewer would not infer some sort of message from Burns’s new mansion because, quite simply, a viewer can’t see it. As the second factor of the Johnson test indicates, the Supreme Court’s cases (and ours) have focused on the perspective of those who “view[]” the expressive conduct. See Johnson, 491 U.S. at 404. There has to be a viewer for there to be a great likelihood that the expressive conduct will be understood by those who view it. Expressive conduct has a “communicative” element, but only insofar as it, “in 5 While the dissenting opinion acknowledges our agreement “that, at least for purposes of summary judgment, Burns intended to convey a message through the design of his home,” Dissenting Op. at 99, it later says that “[p]erhaps” we “intend[ed] to suggest that Burns’s First Amendment claim [was] disingenuous” because, when describing the facts, we “pair[ed]” his “‘philosophy of simplicity in lifestyle’ with a recitation of the house’s features, including that it will have a ‘basement garage, outdoor pool and spa, cabana, and exercise room,’” id. at 123 n.5. We have no such intent. All we have done is recite the undisputed facts that the message Burns sought to communicate with his new mansion—simplicity in lifestyle and living with an emphasis on fewer personal possessions—included adding 15,000 square feet and a second story to his mansion, a basement with a five-car garage, wine storage, a steam room, a spa, a cabana, and an exercise room. 33 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 34 of 136 context, would reasonably be understood by the viewer to be communicative.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984). After all, expressive conduct deserves First Amendment protection because it serves as an “effective way of communicating ideas”—a “short cut from mind to mind.” See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943). But to get from mind to mind, a viewer must be able to see the idea being communicated. All of the Supreme Court’s expressive conduct cases have dealt with conduct that was and could be seen by viewers. In the case that laid the foundation for the Johnson test, Spence, the Supreme Court examined a First Amendment challenge to a college student’s conviction for hanging an American flag upside down with a peace symbol taped over it. 418 U.S. at 406. The student displayed his altered “three by five feet” flag from a window “above the ground floor” of his private apartment, so it was “plainly visible to passersby.” Id. In fact, the student got into trouble because police officers observed the flag from outside the apartment. Id. The state conceded that the student engaged in expressive conduct, id. at 409, and the Court thought such a concession “inevitable on this record,” given the undisputed message the student sought to communicate and the likelihood that “that the message would be understood by those who viewed it,” id. at 409–11. 34 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 35 of 136 In Johnson itself, the Supreme Court upheld another First Amendment challenge to a flag desecration conviction. 491 U.S. at 399. There, the defendant, after a demonstration against the ongoing Republican national convention, “unfurled the American flag, doused it with kerosene, and set it on fire” in front of the Dallas city hall. Id. As in Spence, the state conceded (the Court thought “prudent[ly]”) that the defendant engaged in expressive conduct. Id. at 405–06. The Court summarized that, given the political context, the communicative nature of conduct relating to flags, and the demonstration, “[t]he expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.” Id. at 405. The Court has also concluded that parades comfortably fit within expressive conduct, noting the “inherent expressiveness of marching to make a point.” Hurley, 515 U.S. at 568. Parades consist of “marchers who are making some sort of collective point, not just to each other but to bystanders along the way.” Id. They require a public display of their message: “a parade’s dependence on watchers is so extreme that nowadays, as with Bishop Berkeley’s celebrated tree, if a parade or demonstration receives no media coverage, it may as well not have happened.” Id. (internal quotation marks omitted). The Supreme Court had no trouble concluding that the parade at issue was expressive conduct, given that “[s]pectators line[d] the streets; people march[ed] in costumes and uniforms, carrying flags and banners with all sorts of messages (e.g., ‘England get out of Ireland,’ ‘Say no to drugs’); marching 35 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 36 of 136 bands and pipers play[ed]; floats [were] pulled along; and the whole show [was] broadcast over Boston television.” Id. at 569. The many other cases in which the Supreme Court and this Court have identified protected expressive conduct all share a common element: the expressive conduct in each of those cases was or could be viewed. The conduct was not like the proverbial tree, which was out of view because it was deep in the forest. See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 203, 207 (2015) (issuing “specialty license plate designs” for “display on vehicles registered in Texas”); Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (“By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct . . . .”); Virginia v. Black, 538 U.S. 343, 348, 350 (2003) (burning a cross on the property of another or observable from a public road); City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (nude dancing at an establishment open to the public); United States v. Grace, 461 U.S. 171, 176 (1983) (peaceful picketing and leafletting on the sidewalks surrounding the Supreme Court); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969) (wearing a black armband to school); Barnette, 319 U.S. at 642 (refusing to salute the flag and recite the pledge of allegiance in school); Stromberg v. California, 283 U.S. 359, 362 (1931) (display of a red flag at a summer camp); Fort Lauderdale, 901 F.3d at 1237–38 (outdoor food sharing open to the public at a city park); Buehrle 36 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 37 of 136 v. City of Key West, 813 F.3d 973, 975 (11th Cir. 2015) (tattooing at a “tattoo establishment in the City’s historic district”); Holloman, 370 F.3d at 1259, 1270 (silently raising fist during the pledge of allegiance at school). Here, Burns sought to express a message through his new mansion’s simple lines, minimal decorative elements, and open spaces built of solid, quality materials, but his design calls for carefully shielding those purportedly expressive elements from any viewer. A limestone wall and louvered gate prevent a person driving or walking north along Ocean Boulevard from seeing the design at all. While a person driving or walking south may be able to see through the gaps in the louvred gate, the viewer’s gaze would be met not by a midcentury modern design, but by heavy landscaping. Private properties close off the north and south view of the new mansion, further reducing the opportunity for an observer to see the design. Even Burns’s neighbors could not see his house because he purposely blocked it from their view with a fourteen-to-sixteen-foot-tall hedge and trees at least eighteen feet tall. Burns is not burning a flag in front of city hall, parading through Boston, or even displaying a sign from his viewable window. The landscaping he proposes obstructs those elements that he says communicate a message. A viewer cannot infer a message from something the viewer cannot view. But, the dissenting opinion says, a reasonable viewer would be able see Burns’s new mansion from the backside facing the beach. Dissenting Op. at 100– 37 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 38 of 136 01. We know this, the dissenting opinion explains, because the record is “abundant with examples of neighbors” and commission members “concerned with Burns’s proposed design precisely because the home can be seen from the vantage point of the beach.” Id. at 107. The dissenting opinion misreads the comments from the commission meetings. They are not largely about Burns’s design. Instead, the comments were about the height and mass of Burns’s new mansion and how dissimilar it would be to the neighboring homes. As part of its criteria, the commission was required to determine whether the “[h]eight” and “[a]ppearance of mass” of the proposed building was “excessively dissimilar in relation to any other structure existing . . . within 200 feet of the proposed site.” Town of Palm Beach, Fla., Code § 18- 205(a)(6). The neighbors and commission members spoke to these factors. To them, Burns’s new mansion looked like an elephant next to his neighbors’ poodles. • “This long massing is, along one property line, is dissimilar to the adjacent properties . . . It’s as much or more house than houses that have double the lot size. . . . I want to make it abundantly clear that our objection is not on the basis to the fact that it is international style architecture. That is not our objections.” • “The mass of the proposed home will overwhelm both North Ocean Boulevard and the view from this popular beach . . . . [Burns] does not have 38 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 39 of 136 the land to provide [this] kind of mass without eliminating the privacy of his neighbors. Making the house a little less tall is no solution.” • “[T]his house is far too massive for the size of the lot . . . . It’s just too—too large.” • “[W]e’re not picking on the style . . . it’s been reduced, [but] still it’s 165 feet of building . . . . So you can see that the proposed property is still significantly bigger than the adjacent properties . . . we’re still contending it’s too much house.” • “[T]he new house still towers at the same height and mass over our building and the neighborhood.” The neighbors and commission members were concerned about their view being disrupted by a new mansion that was taller and larger than any of the surrounding homes. The dissenting opinion muses that it’s “hard to understand why Burns’s design created so much controversy . . . if the house would not be visible to the public at all.” Dissenting Op. at 110. But the dissenting opinion confuses visibility with the design. The new mansion disrupted the view because its height and mass were so dissimilar from the rest of the homes in the neighborhood. That disruption is what caused the controversy. But no reasonable viewer could see the actual design because it was blocked by landscaping and fences. 39 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 40 of 136 This doesn’t matter, the dissenting opinion explains, because height and mass are “hallmark features” of the midcentury modern style so the neighbors must be seeing some of the design elements. Id. at 109. But large trash heaps also have height and mass, and no one would say they are midcentury modern masterpieces. If, as the neighbors explained, all they could see of the back of the new mansion was height and mass, then there was no great likelihood that a reasonable viewer could distinguish a Frank Lloyd Wright masterpiece from a pile of garbage. Some neighbors and commission members commented on the design of the new mansion, but those who did were talking about the model Burns presented at the commission’s meetings. As the dissenting opinion explains, the commission’s “evaluation . . . looked at the house design without taking landscaping into account.” Id. at 111. But we must take the landscaping into account as part of our review of the actual record in this case. The dissenting opinion next points to Burns’s experts. Their testimony, the dissenting opinion explains, showed “that the majority of the landscaping work would be focused on the north, west, and south sides of the home,” but the east side of the new mansion would remain “undisturbed.” Id. at 105. But Burns’s expert testified that Burns’s main landscaping goal was screening the property “more than adequate.” Another architectural expert told the commission that there was “substantial vegetation”—a combination of “topography, grass, and vegetation”— 40 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 41 of 136 creating, “from the ocean looking west,” a “visual barrier” between the new mansion and the beach. And, George Ranalli—the same expert the dissenting opinion quotes ten times—swore in his summary judgment affidavit that “Burns has proposed a house in the context of landscape design to protect the neighbors from unwelcome and unavoidable intrusions. The house . . . is surrounded on all four side[s] by a dense perimeter of trees, shrubbery, and other plantings.” All four sides. The dissenting opinion also contends that Burns shielded his new mansion with landscaping “in order to satisfy [the commission] and Burns’s neighbors,” and “it would make no sense to offer less First Amendment protection to speech when the person making it takes steps to minimize any offense caused.” Id. at 111 n.3. But the original plan Burns submitted to the town, before he made any changes, called for “heavy landscaping.” That original plan would have placed a sixteen-to- eighteen-foot-tall hedge and numerous trees between the mansion and the road. It also would have added more landscaping to serve as a buffer between Burns’s mansion and his neighbors’ homes to the north and south. And Burns’s landscape architect told the town council exactly why there was heavy landscaping. He testified that Burns directed him that his “most important design criteri[on]” was screening the property properly and “more than adequate.” From day one, Burns wanted to conceal from his neighbors what he now says is his message. 41 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 42 of 136 The dissenting opinion finally points to five pictures of the mansion to show that its backside would be visible from the beach. Id. at 101–05. But the five pictures are more than a little misleading about what a viewer standing on the beach facing west would actually see. The first picture is an aerial photo of Burns’s “current house,” not his new one. Id. at 101. It tells us nothing about what the new mansion with its heavy landscaping would look like. And this photo is from so high up that the Goodyear Blimp could have taken it. It would be impossible to make out the dunes, grass, trees, and the substantial vegetation from 1,000 feet in the air. The second picture is the architect’s two-dimensional schematic of the new mansion. This top-down drawing of the inside doesn’t show all of the outside visual barriers surrounding the new mansion. The third picture is a computer-generated mockup of the new mansion with an unobstructed view of its backside. The third picture shows only a sliver of land between the water and the backdoors, creating the illusion that Burns could jump from his living room right into the Atlantic Ocean. But, of course, he can’t. Behind the new mansion is a backyard, dunes, sea grass, trees, vegetation, and a large beach. The dissenting opinion’s other pictures contradict the third picture. The first, second, fourth, and fifth pictures show the large beach and backyard; the dissenting opinion’s third picture inexplicably—and misleadingly—doesn’t. The dissenting opinion’s third picture is like a picture of a castle without the moat and gate. It’s a 42 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 43 of 136 nice closeup of the building but it’s not what a reasonable viewer would actually see if she were looking at the castle. The fourth and fifth pictures are hobby-store models of Burns’s new mansion. The dissenting opinion claims that they show the “lack of landscaping on the east side” of the new mansion, in contrast to the “dense foliage screen” on the other three sides. Id. at 104–05. But these models—because they are models of the new mansion and not the landscaping—purposely left out the screening on the backside. When presenting the models to the architectural review commission, Burns’s landscape architect told the commission that “on the rear” of the new mansion there would be “more screening . . . than what the model shows”—“[a] lot more.” Burns’s architect explained that the company which made the models didn’t even “have sea grape,” one of the plants that was a part of the visual barrier surrounding the new mansion and which Burns planned to add more of from both the north and south property lines “towards the house” and “into [his] property.” None of the dissenting opinion’s five pictures show what a viewer would actually see if she were standing on the beach facing the back of Burns’s new mansion. None of them. They don’t show what a viewer would see because they’re purposely incomplete. For what a viewer would actually see, the summary judgment evidence is clear. There would be “substantial vegetation” creating a “visual barrier” between the new mansion and the beach. The new mansion, Burns’s summary 43 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 44 of 136 judgment expert swore, would be “surrounded on all four side[s] by a dense perimeter of trees, shrubbery, and other plantings.” We take Burns’s expert at his word; the dissenting opinion doesn’t and instead relies on old or misleading pictures and incomplete plastic models to get around the testimony of Burns’s own expert. The dissenting opinion ends this part wondering “why Burns would create a home with floor-to-ceiling windows only to block the view of the ocean.” Id. at 110. But we don’t have to wonder; the answer is in the actual record. Burns’s landscape architect told the town council that “the most important design criteria for this project for me, and a directive from my client [Burns], was to screen this house properly and more than adequate.” Shifting gears, the dissenting opinion says that, “even if it were true that Burns’s house was not visible at all to those driving and walking by[,] . . . his home would still warrant First Amendment protection” because a guest may be a reasonable viewer. Id. at 111-12. The dissenting opinion relies on the new mansion’s four or five bedrooms and a letter to neighbors about an expanded driveway. Id. at 112-13. But the letter said nothing about Burns inviting guests to his new mansion—Burns (through his attorney) told the commission that the driveway would create parking for “staff” so they wouldn’t have to park on the street—and he presented no evidence that he intended to invite guests. The dissenting opinion finds it “hard to imagine that Burns intended to rebuild his home 44 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 45 of 136 and never invite a single soul to see it,” id. at 112, but the dissenting opinion’s imagination is not evidence and does not create a genuine issue of material fact for summary judgment purposes. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.” (quotation omitted)). Besides, we don’t have to imagine why Burns wanted to build a new mansion. He told us why: “I wished to renovate my existing house to better reflect my current tastes and long-term needs. It was my intention that the design of the new house to be a means of communication and expression of the person inside: Me.” Burns told us his purpose in building his new mansion and it was not to invite guests. After going on-and-on for ten pages about whether a reasonable viewer can see Burns’s home, Dissenting Op. at 100–10, the dissenting opinion tells us that it doesn’t even matter if a passerby or Burns’s neighbors can’t see his house because “the courts have given extensive protection, in many ways and in many different contexts, to the home,” id. at 112 n.4, citing City of Ladue v. Gilleo, 512 U.S. 43 (1994) and Stanley v. Georgia, 394 U.S. 557 (1969).6 But Gilleo and Stanley are 6 The dissenting opinion also cites Lawrence v. Texas, 539 U.S. 558 (2003); Kyllo v. United States, 533 U.S. 27 (2001); Payton v. New York, 445 U.S. 573 (1980); and Griswold v. Connecticut, 381 U.S. 479 (1965). Dissenting Op. at 112 n.4. But none of these are First Amendment cases. Lawrence and Griswold were substantive due process cases, while Kyllo and 45 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 46 of 136 not expressive conduct cases. They are First Amendment free speech cases that involved reading, writing, and watching films. The plaintiff in Gilleo put up a sign in her yard in 1990, and later in the upstairs window of her home, protesting the Persian Gulf War. 512 U.S. at 45–46. As the Supreme Court explained, “signs are a form of expression protected by the Free Speech Clause.” Id. at 48. And the Gilleo plaintiff’s sign was intended for viewers to see. As the Court explained, “a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means.” Id. at 57. The defendant in Stanley was arrested for possessing obscene films in his home. 394 U.S. at 558. The Supreme Court reversed his conviction, holding that the First Amendment prohibited the state from prosecuting the defendant for the private possession of obscene films. Id. at 558–59. “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” Id. at 565. Payton were Fourth Amendment cases. None have anything to do with expressive conduct. Lawrence was about the constitutionality of Texas’s sodomy ban. 539 U.S. at 562 (“The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.”). Kyllo was about whether law enforcement’s use of thermal-imaging technology amounted to a warrantless search. 533 U.S. at 29 (“This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a ‘search’ within the meaning of the Fourth Amendment.”). Payton was about the constitutionality of a warrantless seizure. 445 U.S. at 574 (“These appeals challenge the constitutionality of New York statutes that authorize police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest.”). And Griswold was about the constitutionality of Connecticut’s birth control ban. 381 U.S. at 480 (holding unconstitutional state law that criminalized the use of “any drug, medicinal article or instrument for the purpose of preventing conception”). 46 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 47 of 136 Neither Gilleo nor Stanley involved expressive conduct, much less expressive conduct and architecture. In neither case did the Supreme Court have to grapple, as we do here, with First Amendment issues involving expressive conduct. Political signs are pure speech. Gilleo, 512 U.S. at 48; Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th Cir. 1976) (“Communication by signs and posters is virtually pure speech.”). So are books and films. See Kaplan v. California, 413 U.S. 115, 119–20 (1973) (explaining that “films” and “the printed word” have First Amendment protection); Metzger v. Peracy, 393 F.2d 202, 203 (7th Cir. 1968) (“[M]otion pictures, like books, are protected by the constitutional guarantees of freedom of speech and press.”). As the dissenting opinion acknowledges, “when analyzing the scope of the First Amendment protection beyond ‘pure speech,’ courts should apply the expressive conduct test.” Dissenting Op. at 95. And expressive conduct depends on an observer’s ability to see it. Unless it is seen, there is no likelihood that a viewer would infer a message from it. See Johnson, 491 U.S. at 404. That is true whether the expressive conduct occurs inside or outside the home. Just as the fall of Bishop Berkeley’s tree in the forest makes no sound unless someone is there to hear it, expressive conduct conveys no message unless someone sees it. Burns’s architectural design does not speak so long as his trees prevent viewers from seeing it. See Hurley, 515 U.S. at 568. * * * 47 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 48 of 136 But even if potential viewers could see through the trees, shrubbery, and other landscaping (put there at Burns’s direction to block the view) and could catch a glimpse of some part of the backside of the proposed new mansion, there still would be no great likelihood they would understand that it conveyed some sort of message. See Fort Lauderdale, 901 F.3d at 1240. In expressive conduct cases, “context matters.” Id. at 1237. Context separates “the physical activity of walking from the expressive conduct associated with a picket line or a parade”; the act of sitting down to read at a library from sit-ins protesting segregation; and nude dancing from private dressing. Id. at 1241. The “circumstances surrounding an event” help a reasonable observer discern the dividing line between expressive conduct and everyday conduct. See id. In Fort Lauderdale, we examined five contextual factors to determine whether there was a great likelihood some sort of message would be understood by those who viewed a group sharing a meal with the homeless in a city park. See 901 F.3d at 1242–43. First, the group set up tables and its banner and distributed literature at its events, which distinguished its activity from simply sharing a meal with friends. Id. at 1242. Second, the meal was open to everyone and the group invited all present to share in the meal at the same time. Id. Third, the organization conducted its activities at a city park, a traditional public forum and a “place[] ‘historically associated with the exercise of First Amendment rights.’” Id. (quoting Carey v. 48 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 49 of 136 Brown, 447 U.S. 455, 460 (1980)). Fourth, “the City’s homeless population [was] an issue of concern in the community” that would increase “the likelihood that the reasonable observer would understand that [the organization’s] food sharing sought to convey some message.” Id. at 1242–43. The city had held a “public workshop” on “homeless issues, including public feedings” in city parks and the status of the city’s homeless population had attracted local news coverage for years before that workshop. Id. at 1242. Fifth, the history of “sharing meals with others” that stretched back “millennia” indicated an observer would interpret some message. Id. at 1243. Here, the Fort Lauderdale factors show that a reasonable observer would view Burns’s new mansion as a really big house, but not as an expression of some sort of message. First, Burns has no plans to set up tables, distribute literature, or hang up a banner in front of his new mansion. He is not giving tours or handing out informational brochures on its design elements. Second, Burns has offered no evidence that his house will be open to everyone or that he has invited the public to view his architectural design. In fact, he has carefully shielded it from public view with a limestone wall, louvered gate, heavy landscaping, and substantial vegetation. Third, unlike a public park, a private residence is not a traditional public forum, nor has it been historically associated with the exercise of First Amendment 49 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 50 of 136 rights. Certainly, First Amendment protections do not end at the home. See, e.g., Spence, 418 U.S. at 406. But a private home, unlike a public park, has not traditionally “been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Fort Lauderdale, 901 F.3d at 1242. Unlike a group activity in a public park, the context of Burns’s new mansion—a private oceanfront residence surrounded by lush greenery along a quiet residential street—does not transmit a message to the viewer. Fourth, there is no evidence that residential midcentury modern architecture was a public concern of the town that was workshopped by the town council or reported by the local news in the years before Burns’s building permit application. See id. There was no local discussion or public concern about Burns’s design that would provide background to help a reasonable observer understand that Burns sought to convey some message. In fact, the midcentury modern style was so uncontroversial that it was listed in the architectural review commission’s guidelines as one of Palm Beach’s ten predominate styles. Burns was not burning a flag after a demonstration amid the ongoing Republican national convention, see Johnson, 491 U.S. at 406, hanging an American flag upside down with a peace symbol taped over it after the shootings at Kent State, see Spence, 418 U.S. at 410, or wearing a black armband to school during the Vietnam War, see Tinker, 393 U.S. at 505. See also 50 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 51 of 136 Fort Lauderdale, 901 F.3d at 1243. He was merely building another house on a residential street. Fifth, there is no evidence that residential architecture has been used over the millennia to convey a message. Burns submitted expert reports discussing residential architecture as an expressive means for the homeowner. One expert said that a custom design enhanced the expressive nature of a house because the architect and client can work together to express the client’s “personal aesthetic.” And another expert chronicled the development of architecture as an art form starting with Plato, continuing with the ancient Romans and the Renaissance, and enduring today. But there was no evidence that residential architecture, specifically, has a historical association with communicative elements that would put a reasonable observer on notice of a message from Burns’s house. The fifth Fort Lauderdale factor asks whether the conduct at issue has been understood to convey a message over the millennia. 901 F.3d at 1243. While Burns’s experts noted that architectural principles have been used to build homes since Roman times, they said nothing about the message residential architecture has conveyed going “back many hundreds of years.” As the dissenting opinion concedes, Burns’s experts take a “mile-high view” of the history of residential architecture, Dissenting Op. at 121, but—other than some academic-sounding 51 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 52 of 136 generalities—they don’t explain what residential architecture has communicated over the millennia. The historical context in Fort Lauderdale showed that sharing meals was not merely a mode of dining, but also a form of expression. See 901 F.3d at 1243. Two millennia ago, Jesus ate with sinners and tax collectors to “demonstrate that they were not outcasts in his eyes.” Id. In 1621, Native Americans and the pilgrims shared the first thanksgiving to celebrate the harvest. Id. Over two hundred years later, President Lincoln established thanksgiving as a national holiday to express gratitude for the country’s blessings of “fruitful fields and healthful skies.” Id. And Americans continue to celebrate the holiday with traditional foods and family and friends. Id. Both the long history of significant meal sharing and what those meals conveyed—messages of inclusion and gratitude—put an observer on notice of a message from a shared meal. Burns has offered no similar evidence. He has not established that residential architecture has a history stretching back millennia which shows an association between home design and communication. The weight of the factors in Fort Lauderdale revealed that the plaintiff organization’s “food sharing events [were] more than a picnic in the park.” Id. at 1243. We cannot say the same about Burns’s mansion. To the reasonable observer, it is nothing more than another big beachfront home. 52 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 53 of 136 The dissenting opinion concedes, as it must, that Burns’s proposed mansion doesn’t “present the same circumstances” that made meal sharing protected expressive conduct in Fort Lauderdale. Dissenting Op. at 116. But it complains that it’s unlikely “that any piece of residential architecture would ever do so” under the Fort Lauderdale factors. Id. Wrong. Take one of the dissenting opinion’s own examples, Monticello. (1) Monticello has its own website, brochures, and books that are published by the National Park Service and available to the public. (2) Monticello is open for tours. (3) Monticello is a national historic landmark. (4) And its builder, Jefferson, was the author of the Declaration of Independence, our first secretary of state, our second vice president, our third president, the leader of his political party for decades, and an inventor. Hundreds of years later, Jefferson, his ideas, and his ideals are still a part of our public debate. The dissenting opinion criticizes us for looking at Monticello’s historical context as part of the expressive conduct test, id. at 117-18, but all we’ve done is apply the same factors the Supreme Court does in its expressive conduct cases. In Johnson, for example, the Supreme Court considered the two-hundred-year history of the American flag as a national symbol to conclude that burning the flag was expressive conduct. See Johnson, 491 U.S. at 404–05 (“That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our 53 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 54 of 136 country; it is, one might say, the one visible manifestation of two hundred years of nationhood.” (quotation omitted)). While there is no evidence in our record that residential architecture has communicated a message dating back millennia, we’ve never said that every contextual factor has to weigh in favor of the conduct being expressive. The Fort Lauderdale factors are contextual guidelines that we weigh together to decide whether or not certain conduct is protected expression. But Burns’s proposed new mansion does not require us to weigh any competing contextual clues because none of the factors favor finding a great likelihood that a reasonable observer would receive some sort of message from a hidden beachfront mansion. The dissenting opinion says that the Fort Lauderdale factors “were relevant to determining whether . . . food sharing in a public park was expressive” but aren’t relevant in “all future cases” like hanging an American flag upside-down (Spence) or nude dancing (Schad). Dissenting Op. at 116–17. “[T]he circumstances that made the meals in Fort Lauderdale expressive,” as the dissenting opinion understands it, “were not the same as those that made the flag burning expressive in Johnson.” Id. at 118. That is also wrong. The Fort Lauderdale court didn’t make up the expressive conduct factors. It got them from Supreme Court expressive conduct cases having nothing to do with sharing meals. The first Fort Lauderdale factor—setting up tables and banners and distributing literature—came from the 54 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 55 of 136 Supreme Court’s decision in Hurley, the parade case. 901 F.3d at 1242 (citing Hurley, 515 U.S. at 570). The third factor—the location of the expressive conduct— came from the Supreme Court’s decisions in Spence and Johnson, the flag cases (the very cases that the dissenting opinion says are not contextually relevant to the Fort Lauderdale factors). Id. (citing Spence, 418 U.S. at 409–10 and Johnson, 491 U.S. at 406). The fourth factor—whether the conduct involves an issue of concern to the community—also came from Spence and Johnson as well as Tinker, the black armband in school case. Id. at 1242–43 (citing Johnson, 491 U.S. at 406, Spence, 418 U.S. at 410, and Tinker, 393 U.S. at 505). And the fifth Fort Lauderdale factor— the history of the conduct—also came from Johnson. Id. at 1243 (citing Johnson, 491 U.S. at 405–06). While the dissenting opinion says that the factors “are ripped from a markedly different context,” Dissenting Op. at 117, we and the Supreme Court have used the Fort Lauderdale factors in cases as different as flag burning, armband wearing, parading, and meal sharing. There’s no reason—other than they don’t support the dissenting opinion’s position—why the same factors cannot be used to evaluate the expressiveness of residential architecture. We do not hold and have not said, as the dissenting opinion implies we have, that the Fort Lauderdale factors are “exclusive.” Id. at 116. There may be other factors that are relevant to whether Burns’s new mansion is expressive conduct protected by the First Amendment. But it’s incorrect to say, as the dissenting opinion 55 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 56 of 136 does, that the Fort Lauderdale factors are not the same as the factors the Supreme Court considered in flag-burning cases and in other non-sharing-meal cases. They are. After all the pages of discussion spent arguing that the Fort Lauderdale factors don’t apply to any cases but those involving meal-sharing, the dissenting opinion puts forward only two other factors to fill the void. One factor is whether a reasonable viewer would interpret the choice of architectural style as “a message about the philosophy of the house’s owner,” and the other factor is whether Burns’s design is different from his neighbors. Id. at 118, 122. There are three problems with the dissent’s reliance on these two additional factors. First, the dissenting opinion concedes that the parties’ “incomplete record . . . comes to us without a resolution by the district court of questions basic to the disposition of this case,” including “whether there is a likelihood that some sort of message would be communicated to those who view Burns’s new home.” Id. at 74. That is fatal to his First Amendment expressive conduct claim, which requires a great likelihood that the particular conduct convey some message to those who view it. Johnson, 491 U.S. at 404. The second problem with the dissenting opinion’s reliance on its two new factors is that the dissenting opinion fills the gap in the record with journals and articles to support the proposition that a reasonable viewer would understand the 56 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 57 of 136 midcentury modern design as conveying some sort of message. But none of these journals and articles are evidence; none of them are in the actual record before us. The dissenting opinion’s extended discussion about the midcentury modern style going back to the 1930s relies on sources that were not turned over during discovery, were not put before the district court for its consideration on summary judgment, and are not part of the actual record in this case. Our independent examination of the whole record of a case in First Amendment free speech cases gives us room to review the “whole record,” Don’s Porta, 829 F.2d at 1053 n.9, but only the actual record compiled in the district court. Our adversarial judicial system requires that the parties develop the record, not that appellate courts do so. See Turner v. Burnside, 541 F.3d 1077, 1086 (11th Cir. 2008) (“We do not consider facts outside the record.”). The third problem with the dissenting opinion’s reasoning based on its two factors is that it does not fit the actual record in this case. Even assuming a neighbor walking on the beach behind Burns’s new mansion could see some sliver of the rear of the house, virtually all of the midcentury modern design elements would be blocked by trees and hedges and gates and vegetation and other visual barriers. As we explained, Burns instructed his landscape architect to shield his proposed new mansion from his neighbors so the architectural design elements couldn’t be seen. It’s like hanging a Jackson Pollock painting backwards and with all but the top part 57 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 58 of 136 of it hidden. To the extent there is any evidence in the actual record that any “elements” of midcentury modern design in the proposed house would be “discernable to a reasonable viewer,” Dissenting Op. at 120, the viewer wouldn’t be able to see enough of those elements for there to be a great likelihood of her getting some sort of message about the architectural style to know that Burns’s new mansion was different from the other homes in the area. * * * Because the dissenting opinion finds that Burns’s new mansion is expressive conduct protected under the First Amendment, it addresses the level of scrutiny that should be applied to the architectural review commission’s criteria and whether the criteria survives that level of scrutiny. It concludes that the criteria are content-based and subject to strict scrutiny, and that the justification for the criteria—aesthetics— does not survive strict scrutiny. If we were to respond in full to this part of the dissenting opinion, we would build off of the following foundation: • The inconsistency between two of the dissenting opinion’s positions. On the one hand, it states that because the “district court applied the wrong legal standard to Burns’s First Amendment claim,” it would “vacate and remand, directing the district court in the first instance to find facts and measure them against the appropriate standard of law.” On the other hand, the dissenting 58 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 59 of 136 opinion goes on to decide all of the legal issues it had earlier described as “com[ing] to us without a resolution by the district court” because of the “incomplete record.” Dissenting Op. at 74, 98. • The section 18-205(a) criteria are not content-based because they do not distinguish favored from unfavored speech. Section 18-205(a) requires the commission to consider whether the proposed building is excessively dissimilar to any other structure within 200 feet in respect to “significant design features” and “[a]rchitectural compatibility.” Town of Palm Beach, Fla., Code § 18-205(a). On its face, section 18-205(a) applies to all designs. It asks only whether the design features of the proposed building are excessively dissimilar from the surrounding homes. If a grocery store rule requires that dissimilar-looking produce not be put next to each other on the same grocery shelf, a stock clerk doesn’t have to know whether a fruit is a mango or a papaya to know that it doesn’t look like a pineapple. And the similar-produce rule is not personal to any of the three fruits; it is not content- based in the usual sense. • Section 18-205(a) was not intended to discriminate against midcentury modern designs. In the last forty years, the commission received fifteen applications for building permits based on a midcentury modern design. Of those fifteen, the commission rejected only one. Just one. That’s a 59 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 60 of 136 93.3 percent success rate for midcentury modern designs. Some discrimination. And the commission’s own guidelines describe the midcentury modern style as one of the ten predominant styles in Palm Beach. We could go on about this part of the dissenting opinion addressing the level of scrutiny that should be applied to the architectural review commission’s criteria and whether the criteria survive that level of scrutiny, but there is no need. Because we’ve concluded that, even under the Johnson test, Burns’s proposed new mansion is not expressive conduct protected under the First Amendment free speech clause, we don’t need to decide: whether the commission’s criteria are content-based or content-neutral; the level of scrutiny to be applied; and whether the town has given a sufficient justification for its ordinance. Generally, we don’t answer constitutional questions that don’t need to be answered. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). In the end, the dissenting opinion waxes poetically and passionately about architecture, art, and the First Amendment and criticizes us for shying away from the Constitution’s commitment to free expression. Dissenting Op. at 136. But this Court has never shied away from protecting expressive conduct. We have found outdoor meal-sharing in a public park (Fort Lauderdale), tattooing (Buehrle), and 60 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 61 of 136 silently raising a fist during the pledge of allegiance at school (Holloman) to be expressive conduct protected by the First Amendment. One day, we may even find some residential architecture to be expressive conduct. But Burns’s proposed new mansion is not Monticello or Versailles, no matter how much the dissenting opinion wants to compare it to those historic homes. It’s just a really big beachfront house that can’t be seen, located on a quiet residential street in Palm Beach, Florida. Fourteenth Amendment Vagueness Claim Burns next contends that section 18-205(a), the architectural review commission’s criteria for reviewing building permits, is void for vagueness. He argues that section 18-205(a) fails to inform ordinary people what it prohibits and allows the commission unbridled discretion to deny applications and target modern architecture. The Fourteenth Amendment prohibits “any state” from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “It is, by now, a ‘basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.’” Wollschlaeger v. Governor, State of Fla., 848 F.3d 1293, 1319 (11th Cir. 2017) (en banc) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). A vague law can violate the due process clause if it (1) “fails to provide people of ordinary intelligence a 61 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 62 of 136 reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes or even encourages arbitrary and discriminatory enforcement.” Id. (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). “[A] civil statute is unconstitutionally vague only if it is so indefinite as ‘really to be no rule or standard at all.’” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1310 (11th Cir. 2009) (quoting Seniors C.L. Ass’n v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992)). The void-for-vagueness doctrine addresses “at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). Standard economic regulations, including zoning ordinances, need only pass “a less strict vagueness test.” See Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); see also CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 631 (3d Cir. 2013) (applying the “less strict vagueness test” to a zoning ordinance). In First Amendment free speech cases, however, “rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” Fox Television Stations, 567 U.S. at 253–54. Because Burns’s proposed new mansion does not raise First Amendment concerns, we apply the “less strict vagueness test.” See Hoffman Ests., 455 U.S. at 496–98 (rejecting a free speech 62 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 63 of 136 challenge and proceeding with the void-for-vagueness analysis); see also Leib, 558 F.3d at 1311 (holding that a civil statute regarding permitting met the less strict vagueness standard); Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1378– 79 (11th Cir. 1994) (holding that an ordinance that allowed a town to revoke a building permit upon a determination that “substantial work” had not been accomplished in a thirty-day period was not unconstitutionally vague). Like the district court, we conclude that section 18-205(a) is not unconstitutionally vague. In a similar case, Maher v. City of New Orleans, 516 F.2d 1051, 1054 (5th Cir. 1975), the former Fifth Circuit held that a New Orleans ordinance requiring an architectural commission to preserve the “architectural and historical value” of that city’s French Quarter did not run afoul of the due process clause. There, the plaintiff wanted to demolish his Victorian cottage and build apartments in its place. Id. He sought approval from the city’s architectural commission, as required for any demolition or construction project. Id. As with Burns’s new mansion, “[a]lmost from the time of the original application, interested individual neighborhood owners . . . vigorously opposed the [plaintiff’s] plan to tear down the cottage and to develop the property.” Id. The plaintiff “undertook a succession of attempts to secure approval of his plans from the [c]ommission,” which it eventually granted before the city council reversed it. Id. The plaintiff sued the city, arguing that the architectural commission ordinance violated due process 63 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 64 of 136 because “it provide[d] inadequate guidance to the [c]ommission for the exercise of its administrative judgment.” Id. at 1061. We rejected the vagueness challenge for several reasons. First, the state constitution, the architectural commission ordinance, and the state supreme court had fleshed out what the ordinance meant by “architectural and historical value”— that it, for example, sought protection of the “quaint and distinctive character of the area.” Id. at 1060–63 & n.58. Second, the ordinance applied only to a specific geographic district, was limited to the appearance of the portions of buildings that faced public streets, and “regulat[ed] items of special interest, such as floodlights, overhanging balconies or signs.” Id. at 1062. Third, the ordinance required the architectural commission to consist of “architects, historians and business persons offering complementary skills, experience and interests.” Id. And fourth, the city council had the power to review the commission’s decisions, preventing the “potential for arbitrariness.” Id. Like Maher, section 18-205(a) has the same protections that limit the commission’s discretion and saved the review criteria from the shoals of vagueness. It has ten exhaustive criteria that the commission must consider before approving an application. Town of Palm Beach, Fla., Code § 18-205(a). The “excessively dissimilar” standard was geographically limited to comparing homes within 200 feet of Burns’s mansion. Id. § 18-205(a)(6). The commission has a limited membership 64 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 65 of 136 made up of no less than two, but no more than three, registered architects and one landscape architect, and even the other members had to be “specially qualified” in art, architecture, community planning, land development, real estate, landscape architecture, or another relevant profession, or have “civic interest and sound judgment” that could be used to determine the effects of a proposed building on “the desirability, property values and development of surrounding areas.” Id. §§ 18- 166(a), 18-167(a). And the town council had the power to review arbitrary decisions by the commission. Id. § 18-177. Faced with similar ordinances, our sister circuits have reached the same conclusion that we do. The Third Circuit concluded that the phrase “development appropriate in scale, density, character and use for the surrounding community” did “not provide ‘no standard at all.’” CMR, 703 F.3d at 631–32. There, the Philadelphia ordinance defined the geographic reach of the provision, which informed the definition of “community.” Id. at 632. And the other words could be unambiguously understood by reference to their dictionary definitions. Id. The Fifth Circuit has also applied Maher to an ordinance that required a building’s color to “harmonize with the structure’s facade,” its materials to be “architecturally and historically appropriate,” and its walkways to be “compatible” with the walkways of “surrounding structures.” Mayes v. City of Dallas, 747 F.2d 323, 325 (5th Cir. 1984). Those criteria, the Fifth Circuit concluded, “provide[d] 65 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 66 of 136 adequate legislative direction to the [c]ommission to enable it to perform its functions consonant with due process.” Id. And the Ninth Circuit has upheld an ordinance that gave a zoning commission “authority to determine whether the use ‘would cause any damage, hazard, nuisance or other detriment to persons or property in the vicinity.’” Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 944 (9th Cir. 1996). The court determined that the ordinance used language “characteristic of zoning regulation” that was “not so general as to be unintelligible to any reasonable owner of property” and thus not unconstitutionally vague. Id. The Third, Fifth, and Ninth Circuits recognized that some of the exact words and phrases that Palm Beach used here, such as “harmony” and “compatible” and a comparison of architectural styles among nearby structures, were not vague and arbitrary. Given the detailed criteria and the procedural protections in section 18-205(a), we cannot say that it provided “no rule or standard at all.” Fourteenth Amendment Equal Protection Claim Burns argues that the district court erred in granting summary judgment on his class-of-one equal protection claim because he offered evidence that the commission reviewed fifteen midcentury modern designs (before Burns’s) and approved all of them except one. This evidence, Burns says, showed that he was treated differently than similar homeowners. 66 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 67 of 136 The Fourteenth Amendment prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Our equal protection cases generally involve “governmental classification and treatment that affects some discrete and identifiable group of citizens differently from other groups.” Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir. 2012). But a select subset of decisions allow class-of- one equal protection claims where “the identifiable group that was discriminated against consisted solely of the plaintiff.” Id. at 1297 n.2. Specifically, we and the Supreme Court have allowed class-of-one claims for “the government’s regulation of property” because we have “a clear standard against which departures, even for a single plaintiff, c[an] be readily assessed.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602 (2008); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (per curiam) (class-of-one challenge allowed to municipality’s requirement of an abnormally long easement); Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164, 1176–77 (11th Cir. 2018) (discussing a class-of-one claim against a zoning ordinance); Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006) (applying class-of-one analysis to a challenge of a zoning ordinance). To succeed on a class-of-one claim in a zoning case, the plaintiff must show that “she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Campbell, 434 F.3d 67 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 68 of 136 at 1314 (quoting Olech, 528 U.S. at 564). Because “[d]ifferent treatment of dissimilarly situated persons does not violate the equal protection clause,” the plaintiff must show that those “others similarly situated” are “prima facie identical in all relevant respects.” Id. (emphasis and internal quotation marks omitted). In evaluating the similarly situated requirement, we look at the state action “in light of the full variety of factors that an objectively reasonable governmental decisionmaker would have found relevant in making the challenged decision.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007). Palm Beach has given us “the full variety of factors that an objectively reasonable governmental decisionmaker would have found relevant” in the form of the statutory criteria it uses to review building permits—section 18-205(a). See id. The statutory criteria are mandatory and apply to every application the commission reviews. Town of Palm Beach, Fla., Code § 18-205(b). So, to show an equal protection violation, Burns must offer evidence of similar mansions that the commission approved based on the same criteria in section 18-205(a) that the commission cited in rejecting his application. The only evidence Burns points to in order to meet this burden is the report his expert David Chase made for the commission. But Chase’s report does not show that the mansions the commission approved were similar to Burns’s new mansion in all relevant respects. Chase’s report identifies homeowners who had midcentury 68 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 69 of 136 modern designs that were approved, but his report does not say that the other midcentury modern designs were “not in harmony with the proposed developments on land in the general area” but approved nonetheless. And Chase’s report did not compare the architectural compatibility, massing, and size of Burns’s property to the mansions the commission approved. Instead, the report provided summaries of the commissioners’ thoughts on each application. But those summaries do not establish that the fourteen midcentury modern designs the commission approved were excessively dissimilar to nearby homes in the same way that the commission found Burns’s new mansion excessively dissimilar to his neighbors’ homes. Chase’s report does not show comparators that are “prima facie identical in all relevant respects.” See Campbell, 434 F.3d at 1314 (emphasis omitted). Given the absence of evidence of other similarly situated designs, Burns has not shown any difference in treatment. His class-of-one claim fails. CONCLUSION We conclude that the district court did not grant summary judgment too early, Burns’s proposed new mansion is not expressive conduct protected by the First Amendment, section 18-205(a) is not unconstitutionally vague, and Burns was not treated differently from other Palm Beach homeowners. Because Burns’s as-applied challenges to section 18-205(a) fail, we also must reject his facial challenges. See William Jefferson & Co. v. Bd. of Assessment & Appeals No. 3 ex rel. Orange Cnty., 69 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 70 of 136 695 F.3d 960, 963 (9th Cir. 2012) (“[A] facial challenge to a statute necessarily fails if an as-applied challenge has failed because the plaintiff must establish that no set of circumstances exists under which the [statute] would be valid.” (internal quotation marks omitted)); Diaz v. Patterson, 547 F.3d 88, 101 (2d Cir. 2008) (same). We affirm the district court’s summary judgment for the town in all respects. AFFIRMED. 70 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 71 of 136 MARCUS, Circuit Judge, dissenting: Outside of Chicago there is a home called the Farnsworth House, nestled in the woods along the Fox River. Or it was a home. Now it is a museum, a National Historic Landmark, and a piece of our common cultural heritage. Designed by the renowned architect Ludwig Mies van der Rohe, the Farnsworth House is a striking piece of art. A single rectangular prism, two-thirds of which is enclosed by glass, the remainder an open-air porch, elevated five feet above the ground by the white steel beams that form its structure, the house blends seamlessly into its sylvan surroundings. When the river floods, the water flows beneath the house; in the snow its white beams and glass panes are nearly invisible; from within it is as though one stands unsheltered in the forest. The house expresses the view of Mies -- and of the home’s first owner, Dr. Edith Farnsworth -- that the modern world has strayed too far from nature and lost the potential for individual fulfillment hidden therein. Donald Burns has lived in Palm Beach for many years. His current home is built in a traditional style that matches that of his immediate neighbors. Seven years ago, Burns decided that his house no longer reflected his identity and he decided to build a house like the Farnsworth House, in the International Style. He wants to do that because of the message he believes the International Style conveys -- minimalism, individuality, and the pursuit of fulfillment in harmony with nature. 71 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 72 of 136 He also might just find the style beautiful. Many do. The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker “ARCOM” may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the Commission do not like the way it looks. In my view, the First Amendment -- the most powerful commitment to think, speak, and express in the history of the world -- does not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason. The First Amendment’s protection of the freedom of speech is not limited to the polite exchange of words or pamphlets. It is not limited -- as the majority suggests -- to public displays clearly related to the narrow issues of the day. It protects art, like architecture, and it protects artistic expression in a person’s home as powerfully as in the public sphere, if not more so. The district court disagreed, based on its application of an incorrect legal standard largely drawn from Second Circuit precedent concerned with the commercial sale of expressive merchandise. Normally when a district court makes an error of law, we vacate and remand and the temptation to do so is particularly great here. But First Amendment cases are unique. When presented with a First Amendment case where “the ultimate conclusions of law are virtually inseparable 72 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 73 of 136 from findings of fact,” the Supreme Court has instructed us that “we are obligated to independently review the factual record to ensure that the . . . court’s judgment does not unlawfully intrude on free expression.” See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648–49 (2000); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 567 (1995) (“This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection.”). Traditionally, this power is used to protect rights from government encroachment. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 510–11 (1984) (“It reflects a deeply held conviction that judges—and particularly Members of this Court—must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.”). The irony today is the willingness of my colleagues to resolve factual disputes and draw factual conclusions on their own, overlooking the obviously erroneous legal template against which the district court measured this First Amendment case, and to do so in order to curtail the freedom of expression, not to protect it. After the majority conducts an independent review of the record to find that the case before us falls on the “far side of the line of constitutional protection,” see 73 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 74 of 136 Hurley, 515 U.S. at 567, it claims to “save for another day” the resolution of issues critical to this case -- namely “whether residential architecture can ever be expressive conduct” and “if so, what is the proper First Amendment test” -- while effectively answering them through its review of the factual record and its application of factors it draws from our recent decision in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018). Majority Op. at 30. It has done so in a way that virtually ensures that no piece of residential architecture will ever garner First Amendment protection -- an outcome that is, as I see it, at odds with the meaning of the First Amendment. At the very least, whether the First Amendment precludes Palm Beach from denying Burns the right to rebuild his house on his own property is a much closer question than the majority acknowledges. The case comes to us on an incomplete record. It comes to us without a resolution by the district court of questions basic to the disposition of this case -- questions such as whether Burns’s artistic and philosophical motivation is genuine, whether there is a likelihood that some sort of message would be communicated to those who view Burns’s new home, whether ARCOM had some reason other than its distaste for the aesthetics of the proposal that motivated it to deny the permit, and whether the Town has reasons other than its aesthetic distaste to support ARCOM’s determination. And because the majority, like the magistrate judge and the district court before it, resolves this case 74 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 75 of 136 on the threshold question of whether the architectural design of Burns’s home is even protected expression, it never conducts the heightened scrutiny applicable, or indeed any scrutiny at all, if it were protected. On this record, I cannot reach the same outcome. As I see it, Burns’s proposed home merits the protection of the First Amendment. I respectfully dissent. I. Donald Burns has lived at 1021 N. Ocean Boulevard in a home on a popular public beach for almost 20 years. His home is built in the Bermuda Style, as shown in the photograph of the east facade below, similar to the traditional styles of his immediate neighbors’ homes. 75 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 76 of 136 Previously, Burns was attracted to the house’s style that communicated that he “wanted to be like [his] neighbors in all respects,” but his views have evolved. He has come to “embrace simplicity in lifestyle and living” and has said that he intends to convey the message that he is “unique and different from [his] neighbors.” The traditional style of his home, which communicates “history, establishment, and stability,” no longer reflects those views or his identity. In 2013, Burns decided to rebuild his home in the International Style -- a style that better expresses his new perspective. International Style architecture is a prominent style of modern architecture -- distinguished by simple lines, exposed glass, white structural elements and open spaces -- that developed in the first half of the twentieth century. Its proponents saw the integration of nature into human living space as an antidote to the clutter and chaos of modernity. Burns worked closely with a local architectural firm to design a new home in this style and submitted it to the relevant authorities, as shown in the computer-generated rendering of the west facade below. 76 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 77 of 136 Burns’s proposal met every objective zoning requirement to be found in Palm Beach’s Town Code. That the proposal met all objective zoning requirements has never been disputed. Indeed, the Zoning Administrator for Palm Beach asserted at a Town Council meeting that the house “me[]t code as it relates to setbacks, lot coverage, landscape [and] open space.” In most municipalities in the United States, this would have been the end of the story -- Burns had submitted a proposal that complied with safety, size, and environmental requirements prescribed by the Town, and it would permit him to build the home he wanted to on the lot he owns in fee simple. Not so in Palm Beach. In Palm Beach, in addition to meeting all objective zoning requirements, new construction must win the approval of an Architectural 77 USCA11 Case: 18-14515 Date Filed: 06/08/2021 Page: 78 of 136 Commission, established by the Town Council. Nicknamed “ARCOM,” the Commission is a seven-member body of people “specially qualified by reason of training or experience in art, architecture, community planning, land development, real estate, landscape architecture, or other relevant business or profession, or by reason of civic interest and sound judgment.” Code of Ordinances, Town of Palm Beach, Florida §§ 18-166(a); 18-167(a). Charged with “creat[ing] beauty, a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4693683. Public record. Not legal advice.