good morning good morning may it please the court my name is marcy hamilton and i represent the appellant's in this case this case is about whether a city can direct the city employees to create a zoning scheme that is intended to protect one religious entity it is about law making for a religious organization behind closed doors the core polo was required to  the allegations as true it actually trivialize the single most important allegation and that's the allegation that the city directed its employees to craft a zoning scheme an approach that would make it possible for the hub to locate on a single property that those facts were not made available to my clients and till after the zoning was completed so what we're challenging is the zoning that was the result of the illegal collusion this is where you can help me understand exactly what it is you're challenging and exactly what the relief that you're seeking would be if i have this right i understand that what you're challenging is as applied here they gave these zoning variances a deviations call them what you will to the bods to build a particular particular plot and seaside village right there's they gave them the zoning change right that they then gave them approvals all right so they had the approval to build  the museum would have a parking structure they had at a certain height on a specific location in seaside village and what you're saying is you are challenging that we're challenging the original zoning that change and i don't know what that means and you challenging the original zoning you're talking about the application of ordinance five zero for all to this application and the resolution of that application you know it's the very inactive meant of changing the zoning of this plot so that it made it possible for a house of worship to locate their right that was and i know happens in one of two ways the city passes five all four in and of itself it means nothing to you until the hublot comes back and says to the city we want to build on this location in this way and then the city turns around and says ok you can do that here are the zoning alterations you need and here is the permission you're getting that's what you challenge right and all the approvals that occurred are the proof because they were illegal they're the proof let me let me just sort of reframe my question sort of in legal terms you're not seeking a facial challenge on five or four no itself not at but you seeking is the application of five zero four zero to this request and to the variances that were given that enable them to get well we're saying that five zero four zero was in acted unconstitutionally because it was the result of an agreement between the house and the city that was by i understand that but i guess let me rephrase my question you can be either mounting essentially an as applied constitutional challenge or you could be saying something more and different which is i'm challenging facially the ordinance as opposed to its application here i thought it was the latter that you were doing but i want to be sure that i have that right argument do i have that right you do it isn't as applied challenge but it's as applied as to the zoning change that affects this piece of property gotcha ok now what is the relief you're seeking now that we've identified the wrong is the relief that you worked when i read your complaint and then i list listen to your arguments in the briefs and then in the supplementals that we asked you to address i understood you to be saying in the complaint you say one we wan an injunction barring them from going forward with that project at that location in that form that's prospect of relief we want an injunction to you said in your complaint we want damages economic damage compensatory and punitive damages that's in the complaint itself and three we want to declaration that this project is no that it violates the establishment clause then when i read your subsequent briefing it seemed that you abandoned any economic remedy you're correct yes and the shift is due to the royal palms case which invalidated all of the approvals ok so now i wrote in on what it is the relief you are seeking tell me why that has not since become moot and the reason i raise it is because the appellate division of the circuit court and palm beach fifteenth traditional circuit unambiguously enters an order and in it they say the petition for the writ of certiorari is granted the resolution is  resolution was the approval of the site granting them the technical deviation and allowing them to build on that site the resolution is quassia and the matter is remanded to the court an appeal was taken or serve application was filed with the fourth dca and on the fifteenth of november two thousand and sixteen the fourth the florida supreme court was filed if i have that right so you have a final judgment from the circuit court killing this project this application on this site if i have that right and i think i do it's clear as can be then why isn't the case moot to the extent that you are seeking injunctive relief a prospect of rule from this court barring the city from allowing that project to go forward in that form on that site ok so there are two aspects of the case one is that five zero four zero was in acted for the purpose of changing the be one zoning on this property and elsewhere but this isn't as applied challenge on this property the b one zoning was changed to open it to houses of worship we are challenging the fact that five zero four zero was in acted for the benefit of a single religious entity and it changed it from the one where they would not be able to locate to a house of worship possibility i put to the extent the application but that is that play with me is is an as applied challenge we've already established it's not a facial challenge on the ordinance it's as applied you're saying they shouldn't be allowed to build there stop them from building they're enjoying them the circuit court gave you that relief where not what could i say other than what kind of redress could i give you other than saying you can't build there admittedly you can't anyway for reasons of independent of anything i'm saying doesn't that make anything this court would say purely advisory what we're saying is that five zero four zero may not be applied to this property because it was illegally obtained through the system because of the city's collusion with let's assume that's correct the relief you're seeking is to stop the project that got that help the relief we're seeking is that this property no longer be zoned to permit places a public assembly that it go back to the be one zoning and if why wouldn't i wait until another application comes in to build something else on that site whether it be a house of worship or republican symbol there to say i would that issue be right because owning is separate from the approvals from the variances what's happened is the variances have now been wiped off but the is still illegal for my clients even assuming argue window that's true as an abstract proposition i'm hard pressed to see how you sustain any harm that makes bull until somebody comes back and says on round two or three we want to build on that site or maybe somewhere else and seaside village at which point it would seem to me that maybe it had ripen our argument is that the city may not an act examining change in concert with the religious entity behind the scenes this was a manufactured zoning nominee for the purpose of my question all of that's true you have to show whether it's for standing or moodiness for standing that there's an actual harm caused by is true anything more than an advisory opinion what we're asking for is an injunction that says that seven seventy paul my auto may not be zoned in the future i vote for zero in the future as of the date of the opinion it may not be zoned that way so that means it's back to a be one zoning and let me ask a question suppose someone came along to put in some kind of public assembly having nothing to do with  religious purpose on that site they would apply maybe they could get it maybe they couldn't it would have to be studied by the city and then depending on what the city ruled the homeowners might come back and say strike it down judge but until that happens how do i speculate that it might possibly be used in the future if that has not yet transpired and i have no record evidence that it will transpire what the complaint states which the lower court completely trivialized is that there was going to be a change in the zoning for residential purposes where this intense project could be the city pulled back from that when there was anti semitism and widespread objections by the residents so then the city says to its staff ok we're not going to do that anymore we're not going to expand residential opportunities we are now going to create we want you staff to figure out how we can change the zone so that they land in this spot where right now they could not otherwise piece be placed our argument is that that exactly what had been planned tell me specifically what the harm is if they can't build on that side because the circuit court killed the project well they they could reapply any day they could yes maybe they will maybe they won't and if they do you can come back and say you can't let's say they came back and said we want to build it without a museum and we want to build it thirty feet high not forty they could theoretically do that certainly but until they do that what you're asking the court to say i think and maybe i've got this wrong is to bar in the future what might but we don't know whether it will happen and we don't know in what form it will happen because we don't know one who will apply and we don't know to what the application will say but you want us to speculate and lay out the possibility that if they come back and if they do this and if it's that size prevent them from doing it to kill it dead spro suspect of lee on the speculation that it might happen and i suggest to you that seems to me to be asking something that a federal court of limited jurisdiction doesn't have the power to do what am i missing there i think what's been missed is that we are not talking about any more the approvals the approvals that raced through the city and were given that should have never been given including to the museum use which is of course what royal palms held that that was illegal so they wiped out all the approvals now we're back to this piece of property this piece of property was still rezoned through the favoritism by the city of the odd and the motive for that means stop right there men women and the new ordinance just the term places of worship into the definition of places of public assembly well it is that correct it's first it removed the three  public assembly uses that word then permitted on that log in it under that it broadened the definition of permitted public assembly places it broadened it ok it by adding places of worship yes it did which is a neutral correct everybody would be benefit by it right your honor possibly but they did not get it why is that you only have two types of constitutional challenges that you want whatever this relief is right we don't know not so now you're just allen ging the ordinance facially this is unconstitutional because it was done for am proper purpose of benefit this particular organization that me i am not seeking any facial challenge to five zero for the thrust of my attack is an as applied challenge and as applied challenge only to this project did this who i have it right or do i have that wrong you have it right but the challenge is to this property yes i understand i so you're not challenging as a general a facial challenge to a statute would say it's unconstitutional no matter who it's allied to it's overbroad it's vague it collides with the establishment clause whatever the whole thing is no good and you can't imagine any context in which it would work right that's not what you're snow this is not a salerno challenge we are not arguing it's unconstitutional in every application ok so you're simply saying as applied here yes ok cited this property you really mean not the location of the property but as to this project on the property this zoning on this property which was changed for the illegal purpose of making the property of vailable inappropriate for this one religious entity ok let's go back to that i'm looking at the state court order they imposed another requirement they said you've got a meaty of a museum  crime and so they can't even get this project done by complying with five zero they have to comply with other zoning regarding all other museum crime rates for parking and th requirements the part of the resorting ordinances they're going to have to comply with is that not correct if they reapply yes if they are plus so we not only have this one that you're trying to challenge there's two others they're going to have to comply with that because the court says actually what's so interesting they say we're not going to honor the definition including it and say that is a public assembly ordinance is what governs we say all these other museum ordinance governs so why doesn't that and i know that a lot of all of our rank speculation as to whether this is ever going to happen i think that to explain where my clients are coming from it is i understand where they're coming from but it is a question why is this not we can this is a wrong under the establishment clause and the question that's being asked of me and it's perfectly fair is what we're saying is that the city joined together with the home behind closed doors in orchestrated a change in the zoning where nobody was that had any idea that this was all about creating the opportunity location which is the property they had access to we allege that there was an agreement between the city and the bod and during the four public hearings no one in the public was ever informed that the purpose of what looked like a neutral generally applicable place a public assembly amendment was in fact created for the purpose of this particular sounds like politics they should not re person i don't know it sounds like a constitutional case to me it wouldn't be if it was an ordinary developer it's a problem because it's a religious entity and because of the establishment clause senator you don't know on the property do they  relationship is and what's happening with it now it's now in litigation if i can say thank you and i've got five minutes thank you thank you and good morning may please to court my name is diane abbott and i'm here on behalf of the app tele city of boca raton i had intended to to begin my presentation by defending the decision of the district court judge finding a lack of standing which i think was part of a perfectly valid decision under the circumstances and let me ask you about that yes i'm why wouldn't they even assuming argue w that you were right that as a general matter they couldn't show actual and immediate and concrete injury where they were alleging that if you allow the project to go forward down the road there's a substantial problem with one traffic will be great to maybe they'll be a flood three if there is a graph from the island would become more difficult these kinds of claims would be sufficiently abstract and attenuated not to provide the kind of immediate in concrete standing which is what the district judge said let's assume that's right yes but why wasn't there taxpayer stepped to the extent the supreme court of the united states has said on ambiguously and we've said as recently as two thousand and eight in belfry that a taxpayer of a municipality has standing to challenge the allocation of public money for a purpose that violates the establishment clause for religious purpose why wouldn't there have been taxpayer standing i mean even assuming that your right and the district court is right about the other things and speaking for myself i think you are but i don't know why they wouldn't have taxpayer standing and if they do have taxpayer standing it seems to me that answers the first requirement of standing stand there were corps action the immediate harm second caused by the alleged misconduct of the city and three that it's redress will it doesn't answer questions two and three but it answers the first question why wouldn't they have taxpayer standing to the extent they would tax payers  paid the city money and city money was used taxpayer money was used for an unlawful purpose that advanced the interests of religious institutions would not give them standing at least to be heard i don't think so your honor let me let me put a limit airily answer the course by pointing out that as far as i can tell that position has been abandoned i don't i don't see any claim in the appellant's brief challenging the finding in terms of taxpayer standing but to more directly answer the court's question there is no finding on tax payers thing or you get from the district court is they don't have it it's sort of an a b c dixit assertion doesn't tell me why they don't have taxpayer standing on  meant to suggest is the appellant's don't seem to have challenged that position on taxpayer standing i thought they went forward on two grounds admittedly the first ground was the main ground but i didn't read them to have abandoned taxpayer standing job maybe i missed it unless i missed it i have read that forty or fifty page brief and i don't see anything there on taxpayer standing so so as far as i can tell the appellant so you say they've abandoned it let's suppose they haven't abandoned us and it's in their complaint sure remember we're here just on a motion to dismiss of wouldn't a taxpayer have standing as a municipal taxpayer to challenge the expenditure of government funds for this purpose if they claim  violated these that was one clause which the municipal taxpayer the primary response that we had to that argument on the motion to dismiss which i think was adopted by the district court judge at least in terms of the initial complaint is there was not a municipal expenditure within the meaning of the taxing and well there was there was the expenditure of staff money yes or why wouldn't that be enough if you look at how free that's why i raise the the question we had a case this court decided ten years ago how free versus cobb county are you had you seen that case i don't know let me tell you what happened in the case cobb county began every section session of the county commission with the breyer taxpayers challenge that on the establishment clause ground said you couldn't have a cleric come in and make a prayer at the start of the session we're not talking about merits yet whether that's right or wrong and the panel said that was perfectly constitutional it was consistent with our history etc the first question is did they get to raise it did they have standing to raise it the panel said yes and the basis for the standing was that the taxpayers one basis for the standing was the taxpayers and spend had made contributions as taxpayers to the city and city monies we used how would the city monies used i'll tell you how to minimize that was in that case staffers who work for the cobb county commission surveyed all of the clerics within the county limits sent them letters and said would you like to voluntarily give a prayer and a whole bunch of them said yes and then the staffers wrote a letter afterwards thanking them if they if they did that that was the extent of the taxpayer involvement that was the extent of the expenditure of public monies and that was enough to give them taxpayer standing if that is correct why wouldn't the taxpayer have standing here i'll grant you it is oddly de minimus and if you try to calculate the amount of money it would be point zero zero zero whatever in so far as it bore on the taxpayers expenditure but why doesn't that give them taxpayer standing to seek injunctive relief assuming the case had not mooted out your honor and if and forgive me i hope i'm not misspeaking i'm talking about pelphrey from memory but if i remember right it was of special significance to the court the postage expenses while as as your honor suggest maybe that's to minimize there was an actual public expenditure they had to pull wasn't just it wasn't just the it wasn't just the postage it was that the staffers took the time to come up with the names and solicited their willingness to the clerics to participate so it was staffed time and postage but if you added the whole thing up it didn't amount to much well you are it's it was oral argument before the court and continues to be our argument here to the extent this is still a live issue that the expenditure of funds even a small amount like postage might give one standing but staff time is not an expenditure we relied upon the supreme court decision called flast versus cohen for that proposition that you pay a salaried employee what you pay that employee for a salary and there is and you didn't have to pay him anymore because he accomplished a particular task during the work day and so you know taxpayer my put the difference in flats three cohen is the taxpayer was given standing it was a federal taxpayer there and they've since really constricted that holding but if the taxpayer paying money into the federal treasury challenges a constitute a of money pay for teachers to go into procul schools and give remedial math instruction they have standing to challenge that but otherwise generally being a taxpayer doesn't give you standing on a state or federal level but the municipality the courts have said is different i agree with that it's arguably a fiction because you have a city like new york with eight million people the amount of money you pay and there was far less than you might pay in the state of montana if you just looking at the numbers but all i'm asking is if they had let's just assume they had taxpayer standing tell us why it's mood well as the as the questions from the bench a began there is now no development approval date there there is no closer to being a religious assembly on this piece of property in any other property in the city and so while the appellants have denied making a facial challenge there has really not been a single event that would elevate their status above any other property in the city in a zoning just tick that is own to allow places of public assembly there's there's no closer to developing on this parcel than any other of those parcel let me ask you just the way you do that i just want to comment that they very good your honor ok let's assume is there any record evidence that the whole bod has gone back to the city and said ok we can't go forward the pursuant to the state order which is final but that was simply with respect to because we had a museum as well as just the temple and we're just going forward without the museum and we're going to take care of the parking problem too because they go is there any evidence that they have gone back to do that there is no such evidence your honor and as far as i know it's not the case in any of that right that there's just nothing in this record to reflect approval so any prospective builder on this partial or any other parcel has to start at the very beginning and has to comply with all of the misspell ordinances and of course in this be one district there's the issue identified in royal palm that museums are not a permissible use there are the issues of height where as you've seen the hublot has pointed out that the allowable height in this district has been decreased and so at this point trying to measure the adverse effects of a building that hasn't been designed pursuant to guidelines that have been changed i think are certain right now we don't even have an application for approval arce the application just been approved and approv been returned so we still have an application for approval and we don't even know that it's going to be approved and again the record does not reflect that there has been a subsequent application and there would have to be a subsequent application and to the extent it's of interest to the panel i don't believe there has in fact happened i have had three times as may parking spaces the initial application that would certainly have to be in compliance with the district regulations for parking which may be triggered in part based on the square footage of the building and and again without an application that has not been computed yet thanks very much  disconnect between the complaint and appellants theory on appeal while the complaint attributes appellants alleged future injuries to the scope of the proposed site plans appellants shift gears in their briefing before this court and claim that the injury in this suit has has always been and only been about their disenfranchisement this results in two problems first to the extent that any of the complaints of others what is disenfranchisement mean that the heart of the complaint is it violates the better question for the what do you take that to me in their reply brief they say that they've been disenfranchised because they were or were denied the ability to participate in the passage of of ordinance fifty four so that's the due process claim i think that that's what they're arguing but i'm i'm not positive that's a question for them but i think that to the extent that any of the complaints allege injuries ever satisfied article three which i don't think they did appellants abandon claims of future injury relating to the scope of the  project so this includes increased risk of flooding or traffic but the second problem is that the disenfranchised chosen theory is a novel concoction on appeal that doesn't appear in the complaint and because they feel depleted in their complaint it can't form the basis for federal court jurisdiction under article three and of course even if it could it's the very paradigm of a generalized grievance but i started saying that i wanted to pick up where you left off and first i'd like to do that by talking about taxpayer standing in the  case judge marcus i think your observation was correct that municipal taxpayer standing is broader than what we think of under the flask case but even in pelfrey there is a distinction that's very important which is that you find this on page twelve eighty of the case municipal taxpayers have standing to challenge unconstitutional expenditures if their interest is direct and immediate so in that case the individuals the tax payers who brought the those folks who actually went into the commission meetings and heard the prayers and said we have a direct and immediate interest in whole another set of taxpayers another set of plaintiffs w taxpayers who never went in there and the court's holding is in an alternative form and the court says at twelve eighty the taxpayers also have standing as municipal taxpayers that's independent from somebody who actually went into the meeting hall i agree that there are two holdings but within the municipal tax payer discussion the court says that the taxpayers have standing to challenge unconstitutional expenditures if their interests is direct and immediate and so i think there is still a limit and it's not just the payment of municipal tax dollars but i could be misreading the case but that is right before where the court concludes that these municipal tax payers had standing to bring this particular establishment clause challenge right thank you but i'd like to turn then to what i believe is the heart of this appeal which is that this case has now become moot and to the extent that any of the injuries if there was ever a taxpayer standing to begin with  complaint now the appellant's no longer have a claim of injury at all because this particular property is about is not building on this property it doesn't have site plans approved or pending approval on this property and is there any indication in this record that an additional application has been filed absolutely not that there were any allegations in the record that there were communications with the city about a future application that's not in the record and i'm not aware of any and that's for two reasons first the site plans were invalidated in state court but  second that there is a dispute over whether the t g c view land trust will permit to build on the property at all and that's being litigated in state court and as of a few years the record reflect who owns this particular  will be able to build on this property and as of a few days ago up you see nothing has been resolved in that case that i can report to you about whether the body will be permitted to build on this or not if there are no further questions from the find it dismissed because of this thank you very much just have a few points you know i have to say that the the table right here illustrates my client's problem the city and t just like they engineered the zoning code to gather to the detriment of my clients the redress that they're asking for is that this court hold or this little getting it together because you sued them together didn't  constitutional government the redress we're asking for is pretty simple we would like this court to return this property to be one zoning where it was before the illegal relationship started once that happens then we're back to where we started before the scheming began my last point is i just have to point out the district court was absolutely wrong on generalized grievance you tell me your best case if they do a facially neutral establish that type of improper purpose that makes it unconstitutional under the stablish causes as with one particular house or straight right well this isn't this isn't a facial challenge so i don't care what kind of look at you wan wroth and then what's the other one you want to say the other one would be curiosity oh well at the supreme court ok that's all i made up like you so finally on generalized grievances generalized grievances when something like a trade organization assert tries to assert standing it's not when individuals directly harmed by that decision by the government assert standing for the court to say that because many people are affected by this decision of the city that our clients do not have standing it makes absolutely no sense what it proves is a lot of people were harmed but only two people brought suit there are no other questions thank you very much