GERALD GAGLIARDI, KATHLEEN MACDOUGALL, Plaintiffs - Appellants,
TJCV LAND TRUST, Defendant, CITY OF BOCA RATON FLORIDA, a Florida Municipal Corporation, Defendant-Appellee, CHABAD OF EAST BOCA, INC., Defendant - Intervenors - Appellees.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:16-cv-80195-KAM
MARCUS, FAY, and HULL, Circuit Judges.
MARCUS, CIRCUIT JUDGE.
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.
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.
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.
relevant portion of the ordinance reads this way:
Section 28-2, Code of Ordinances, is amended as
"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.
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.
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 ...