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Melrose, Inc. v. City of Pittsburgh

July 20, 2010

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.,



On Appeal from the District Court for the Western District of Pennsylvania (No. 02-cv-01161) District Judge: Joy Flowers Conti.

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued January 25, 2010

Before: FUENTES and FISHER, Circuit Judges, and DIAMOND,*fn1 District Judge.

OPINION OF THE COURT

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 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 (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.

I.

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.*fn2

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.*fn3 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."*fn4

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, 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 ยง 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 ...


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