Gagliardi v. TJCV Land Trust

• Citation: 889 F.3d 728
• Decision Date: 07 May 2018
• Docket Number: No. 17-11820,17-11820
• Parties: Gerald GAGLIARDI, Kathleen MacDougall, Plaintiffs–Appellants, v. TJCV LAND TRUST, Defendant, City of Boca Raton Florida, a Florida Municipal Corporation, Defendant–Appellee, Chabad of East Boca, Inc., Defendant–Intervenors–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

889 F.3d 728

Gerald GAGLIARDI, Kathleen MacDougall, Plaintiffs–Appellants,

v.TJCV LAND TRUST, Defendant,City of Boca Raton Florida, a Florida Municipal Corporation, Defendant–Appellee,Chabad of East Boca, Inc., Defendant–Intervenors–Appellees.

No. 17-11820

United States Court of Appeals, Eleventh Circuit.

May 7, 2018

Arthur Charles Koski, Koski Law Office, Boca Raton, FL, Marci A. Hamilton, Law Offices of Marci A. Hamilton, Washington Crossing, PA, for Plaintiffs–Appellants.

Zimra Payvand Ahdout, Jay P. Lefkowitz, Steven J. Menashi, Kirkland & Ellis, LLP, New York, NY, Daniel Howard Blomberg, Lori Halstead Windham, The Becket Fund for Religious Liberty, Washington, DC, Henry B. Handler, Weiss Handler & Cornwell, PA, Boca Raton, FL, Elliot C. Harvey Schatmeier, Bird Marella, Los Angeles, CA, Lawrence C. Marshall, Kirkland & Ellis, LLP, Chicago, IL, for Intervenors–Appellees.

Daniel Lawrence Abbott, Jamie A. Cole, Adam A. Schwartzbaum, Weiss Serota Helfman Cole Bierman, Fort Lauderdale, FL, for Defendant–Appellee.

Gregory Dolin, University of Baltimore School of Law, Baltimore, MD, for Amicus Curiae Jews for Religious Liberty.

Michael Lazaroff, Greenberg Traurig, LLP, New York, NY, for Boca Raton Religious, Civic and Business Leaders and Former City Officials.

Miles E. Coleman, Nelson Mullins Riley & Scarborough, LLP, Columbia, SC, for Amici Curiae Union of Orthodox Jewish Congregation of America, the Rabbinical Council of America, Chabad-Lubavitch World Headquarters, Agudath Israel of America.

Louis M. Solomon, Greenberg Traurig, LLP, New York, NY, for Louis M. Solomon.

Before MARCUS, FAY, and HULL, Circuit Judges.

MARCUS, Circuit Judge:

At issue today is whether the appellants' lawsuit—basically claiming that the City of Boca Raton violated the Establishment Clause when it approved the construction of a religious center near their homes—presents a live case or controversy. Because a state court has since barred the construction of this center after the lawsuit was commenced, we hold that the case has become moot and is no longer justiciable. Accordingly, we affirm its dismissal.

I.

A.

The appellants, Gerald Gagliardi and Kathleen MacDougall, are two residents and taxpayers of Seaside Village, a barrier island community in Boca Raton, Florida. They sued the City of Boca Raton ("the City") for adjusting its zoning rules and approving site development plans for the Chabad of East Boca ("the Chabad"), a religious organization. The story began in 2007, when the Chabad sought to acquire parcels of land in an area of the City zoned for single-family residential use, with the intention of developing a religious site. The City introduced a proposed ordinance that, among other things, would have permitted "places of worship" in areas originally zoned for single family residential use. Some local residents opposed the Chabad’s project, which led to a series of extremely contentious meetings and hearings on the proposed ordinance. The proposal never passed, and the City stopped considering the plan in January 2008.

Thereafter, the appellants claim, there were a series of ongoing and secret discussions about the development of another religious site, between the City, the Chabad, and a local developer who owned a different parcel of property at 770 Palmetto Park Road in the Seaside Village area. According to the appellants, the City directed its staff to ensure that the development of the new site would be permitted. In May 2008, the City offered a second proposed ordinance—Ordinance 5040—that would, among other things, add "places of worship" to the definition of "Places of Public Assembly" in the zoning code, thereby clearing the way for the Chabad’s use of the Seaside Village property. The property at 770 Palmetto Park Road was zoned B-1, an area permitting uses including places of public assembly.

The relevant portion of the ordinance reads this way:

Section 28-2, Code of Ordinances, is amended as follows:

"Places of public assembly" shall mean any area, building or structure where people assemble for a common purpose, such as social, cultural, recreational and/or religious purposes, whether owned and/or maintained by a for-profit or not-for-profit entity, and includes, but is not limited to, public assembly buildings such as auditoriums, theaters, halls, private clubs and fraternal lodges, assembly halls, exhibition halls, convention centers, and places of worship, or other areas, buildings or structures that are used for religious purposes or assembly by persons.

"Places of worship" shall mean any area, building or structure where people assemble for religious purposes.

After four public hearings, the ordinance was adopted unanimously by the City Council. The appellants also claim that the real purpose of the City’s actions—proposing and pushing through Ordinance 5040 in order to allow the development of the religious site—was hidden from the public.

Seven years later, in 2015, the Chabad’s then completed building plans for the Seaside Village property came before the City Council for approval. The proposal called for a mixed-use, two-story religious space including "a meeting area, religious museum area, parking structure, social hall, children’s playroom, kitchen, and a bookstore." Approval required two zoning variances: a technical change that allowed for the site’s planned parking, and approval for the proposed height of the building, forty feet and eight inches, which exceeded the maximum height permissible without special authorization. The City’s planning staff recommended the building be approved, and the Planning and Zoning Board and the City Council agreed in May 2015, authorizing the site development and the requisite variances.

B.

The appellants filed suit in the United States District Court for the Southern District of Florida in February 2016, alleging violations of the Establishment Clause, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Florida Constitution. The complaint averred that the City violated the Constitution by giving preferential treatment to the Chabad. Among other things, the City allegedly revised its zoning ordinances and variances in order to accommodate the Chabad’s building plan. The complaint sought declaratory and injunctive relief as well as compensatory and punitive damages.

The appellants said that construction of the Chabad’s site at 770 Palmetto Park Road would substantially increase traffic in their neighborhood, undermine accessibility for emergency vehicles, cause flooding, and alter their property values. The appellants also argued that the project would change the character of the Seaside Village neighborhood; and, finally, that the approvals and supervision of the property involved the expense of public monies on behalf of a religious organization.

The Chabad and TJCV Land Trust ("TJCV"), the owner of the Seaside Village land parcel, intervened in the lawsuit. TJCV, however, has since voluntarily dismissed its appeal. The City and the Chabad both moved to dismiss for failure to state a claim and because the appellants lacked standing in the absence of any constitutionally cognizable injury. The district court twice dismissed the complaint, each time finding the case was not justiciable because the appellants lacked Article III standing. The trial court reasoned that increased traffic, difficulties in access for emergency vehicles, and a change in the character of the area were common to the whole community, not particularized to the appellants. Moreover, the court found that the injuries were neither imminent nor concrete but merely potential and hypothetical outcomes from a building that had not yet been built. The district court also rejected the idea that the residents were entitled to taxpayer standing.

During the course of the litigation, an additional lawsuit arose. Unrelated parties, for wholly different reasons, challenged, in a Florida state court, the City’s approval of the plans for the same project at the same site. An appellate division of the Palm Beach County Circuit Court quashed the City resolution that had granted approval of the plans. Royal Palm Real Estate Holdings, LLC v. City of Boca Raton, No. 2015-CA-009676 (Fla. Cir. Ct. June 6, 2016). The state court reasoned that the City’s approval was improper because the proposal included a "museum." Id. at 4–7. While the City Code provisions for the relevant zoning area allowed "places of public assembly," that definition did not include "museums," which were differentiated from "places of public assembly" in other sections of the City Code. Id. at 6. Thus, the approval of the entire plan, notably including a forbidden museum, violated the zoning code, and therefore the project as proposed was barred. Florida’s Fourth District Court of Appeal denied a writ of certiorari, TJCV Land Trust v. Royal Palm Real Estate Holdings, LLC, No. 4D16-2276 (Fla. Dist. Ct. App. Nov. 15, 2016), and there the case ended, inasmuch as the parties did not seek certiorari review in the Florida Supreme Court. The parties do not dispute that the judgment of the Palm Beach Circuit Court was final and invalidated this project.

One additional event occurred during the course of this litigation: the City altered its zoning laws, prohibiting variances for buildings exceeding thirty feet in height on certain parcels of land, including the parcel located at 770 Palmetto Park Road. Boca Raton, Fla., Code of Ordinances, § 28-780.

II.

The appellants claim they have standing, both because they pled an injury-in-fact and because they had taxpayer standing. They also assert that this case has not become moot. We assume, merely for purposes of argument, that the appellants had standing at the outset of this suit. See, e.g., Glassroth v. Moore, 335 F.3d 1282, 1292 (11th Cir. 2003) ; Pelphrey v. Cobb Cty., 547 F.3d 1263, 1280–81 (11th Cir. 2008). However, we need not ultimately decide whether the residents had standing when they...