613 F.3d 380 (3rd Cir. 2010), 08-4425, Melrose, Inc. v. City of Pittsburgh

Docket Nº:08-4425.
Citation:613 F.3d 380
Opinion Judge:FUENTES, Circuit Judge:
Party Name:MELROSE, INC., Appellant v. CITY OF PITTSBURGH; City of Pittsburgh Zoning Board of Adjustment; Clifford B. Levine, Esq.; Regis D. Murrin, Esq.; Jesse W. Fife, Jr.
Attorney:Howard R. Lehman, Esq., (Argued), St. Pittsburgh, PA, for Appellant. Lawrence H. Baumiller, Esq., (Argued), George R. Specter, Esq., City of Pittsburgh Department of Law, Pittsburgh, PA, for Appellees.
Judge Panel:Before FUENTES and FISHER, Circuit Judges, and DIAMOND,[*] District Judge.
Case Date:July 20, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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613 F.3d 380 (3rd Cir. 2010)

MELROSE, INC., Appellant


CITY OF PITTSBURGH; City of Pittsburgh Zoning Board of Adjustment; Clifford B. Levine, Esq.; Regis D. Murrin, Esq.; Jesse W. Fife, Jr.

No. 08-4425.

United States Court of Appeals, Third Circuit.

July 20, 2010

Argued Jan. 25, 2010.

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[Copyrighted Material Omitted]

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Howard R. Lehman, Esq., (Argued), St. Pittsburgh, PA, for Appellant.

Lawrence H. Baumiller, Esq., (Argued), George R. Specter, Esq., City of Pittsburgh Department of Law, Pittsburgh, PA, for Appellees.

Before FUENTES and FISHER, Circuit Judges, and DIAMOND,[*] District Judge.


FUENTES, Circuit Judge:

Melrose, Inc. (" Melrose" ) brought this action challenging the Pittsburgh Zoning Board's rejection of its applications to change the Identification Signs on five Pittsburgh buildings. The proposed building names included " wehirenurses.com building" and " palegalhelp.com." The Zoning Board determined that the signs were Advertising Signs and were therefore prohibited in the zoning districts where Melrose's

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buildings were located. In reaching this decision, the Zoning Board applied four criteria that it had articulated in a prior decision for determining whether a sign with advertising aspects could still be classified as a genuine Identification Sign. Melrose challenged this decision in the District Court, arguing that the Zoning Board's rejection of its sign applications violated its First Amendment free speech and Fourteenth Amendment equal protection rights. The District Court rejected Melrose's claims, applying Central Hudson Gas & Electric Corp. v. Public Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), which provides the standard for assessing restrictions on commercial speech.

In our view, Melrose's First Amendment claim is not controlled by Central Hudson, but instead should be evaluated under the test we delineated in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir.1994). Applying Rappa, we hold that the Zoning Board's application of the criteria constituted a permissible " context-sensitive" analysis. We also conclude that Melrose's equal protection claims must fail as Melrose is simply not similarly situated to the entities that it claims were treated differently. Accordingly, we affirm the District Court's grant of summary judgment.


Between May 1998 and February 1999, Melrose, a Pennsylvania corporation, executed lease agreements with the owners of five Pittsburgh buildings. Each lease granted Melrose the right to name the building and to construct and display signs on the building with that name, as well as the right to sublease or assign these naming rights. The leases, which varied in length from six to twenty-seven years, did not limit the number of times that Melrose could change a building's name.1

Starting in February 1999, Melrose filed applications with the city's zoning administrator to erect building identification signs on the five properties. The process went smoothly and the requested names were approved. The building at 840 East Ohio Street was named " Ram Staiger," a combination of the building owner's name and a business on the premises.2 The nearby building at 818 East Ohio Street was named " Caskey Limited," after the girlfriend of one of Melrose's officers. A building at 1217 West Carson Street was named the " Three Rivers Building," and one at 57 Bates Street was named " The Cole Building," after the son of a Melrose officer. The fifth building, at 1025-33 Beaver Avenue, was named " SSSP." 3

In March 2001, Melrose submitted applications to rename each of the five buildings and change their signage. The Cole Building was to be renamed the " wehirenurses.com building." The application included a drawing of one proposed sign,

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twenty-five feet wide and twenty feet high, with " wehirenurses.com" repeated on four separate lines and the word " building" below that on a fifth line. The SSSP and Caskey Limited buildings were both to be renamed " palegalhelp.com." The Ram Staiger building's name was to be changed to " Baruch Atah Hashem," a Hebrew expression that means " Blessed be God." A signage application was also submitted for the Three Rivers Building, but it did not specify the new name. At a hearing before the Zoning Board, however, the president of Melrose testified that he intended to change the name of this building to " www. palegalhelp. com." Melrose did not propose any changes to the location, size, or shape of the signs already in place on the buildings, but instead sought to change only the signs' content.

The Pittsburgh Zoning Code (" Zoning Code" ) distinguishes between three categories of signs. These definitions are important as Melrose sought to have its signs, with the proposed new names, remain classified as " Identification Signs." " Identification Signs" are permitted in certain zones that prohibit " Advertising Signs." Pittsburgh Code of Ordinances § 919.02. Section 919.01.C of the Zoning Code, in effect at the time of Melrose's applications, provided these definitions:

2. Advertising Sign means a sign that directs attention to a business, commodity, service or entertainment, conducted, sold or offered:

(a) Only elsewhere than upon the premises where the sign is displayed; or

(b) As a minor and incidental activity upon the premises where the sign is displayed.

3. Business Sign means a sign that directs attention to a business, organization, profession or industry located upon the premises where the sign is displayed; to the type of products sold, manufactured or assembled; and/or to the service or entertainment offered on such premises; except a sign pertaining to the preceding if such activity is only minor and incidental to the principal use of the premises.

4. Identification Sign means a sign used to identify the name of the individual or organization occupying the premises; the profession of the occupant; the name of the building on which the sign is displayed; or the name of the major enterprise or principal product or service on the premises.

(J.A. at 120.) In addition to only being permitted in certain zoning districts, " Advertising Signs" are subject, under § 919.02, to more rigorous regulations, with respect to location, placement, size, shape, and illumination, than non-advertising signs. These restrictions further the purposes of the Code's sign regulations, which include allowing advertising signs only in locations that " neither lessen the visual attributes of the City through the placement of such signs, nor cause confusion, safety problems or lessen the ability to identify local businesses through visual clutter." Pittsburgh Code of Ordinances § 919.01.A.11.

Finding that the proposed signs' content represented advertising, the Zoning Administrator denied all of Melrose's applications. The five buildings were in zoning districts where the Zoning Code generally prohibited Advertising Signs, but allowed Business Signs and Identification Signs. Melrose appealed these decisions to the Zoning Board, which conducted consolidated hearings. It denied all five appeals in separate decisions.

The Zoning Board found that the proposed signs for the buildings to be named " palegalhelp.com" and " wehirenurses.com building" represented " a plan or strategy of evasion," which sought to avoid the

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Zoning Code's restrictions on Advertising Signs. (J.A. at 70.) As for the building to be named " Baruch Atah Ashem," which Melrose described as a " religious message," the Zoning Board found that this name did not fit within the Zoning Code's definition for an Identification Sign. ( Id. at 62.) The City of Pittsburgh had sent the Zoning Board a letter advising that there was no legal basis for denying this application on the grounds that it had no advertising component and was a valid building name. Without addressing the City's position, the Zoning Board denied the application but invited Melrose to brief the possible constitutional implications of this particular decision. Melrose did not, however, pursue the matter further at the Zoning Board level. As for the fifth building, which Melrose did not provide a new name for in its application, the Zoning Board found that the Zoning Administrator should not have made a decision until the application was completed. It remanded to the Zoning Administrator so that Melrose could submit an amended application, but a new application was never submitted.

One month before its decisions on Melrose's appeals, the Zoning Board had approved signs for Heinz Field, a major football stadium that is home to the National Football League's Pittsburgh Steelers and the University of Pittsburgh's football team. The H.J. Heinz Company (" Heinz" ) had entered into a sponsorship agreement with the Steelers and had spent $57 million to obtain the naming rights to the Stadium for a period of twenty years. Neighborhood organizations challenged the proposed signage at Heinz Field, arguing that the signs were Advertising Signs rather than Identification Signs and therefore prohibited. In an interim decision in the case, issued on August 15, 2001, the Zoning Board acknowledged that certain Identification Signs, which mention the name of a company or product, may also have an advertising aspect. Accordingly, it identified four attributes that an Identification Sign with an advertising component must possess to avoid being categorized as an Advertising Sign. The four criteria included: first, one of the sign's major purposes is to establish a destination point generally recognized by the public at a specific location; second, the established location is important to a material segment of the public (for example, a sports, cultural...

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