The dot-com industry tried to leverage the use of on-premise signs in Pittsburgh, but lost a fight over advertising its web addresses on major buildings in that city. Both the facts of the case, and the legal analysis just provided by the U.S. Court of Appeals for the Third Circuit, are worthy reading.

 

In the late ’90s, a Pennsylvania entity, Melrose, Inc., signed leases with the owners of five Pittsburgh buildings. The leases gave Melrose the right to name each of the buildings, and to have a sign on each with the name Melrose selected. It will be important that Melrose here acted as a third party, not as the owner of a building.

 

Leases in hand, Melrose in early 1999 filed applications with Pittsburgh zoning officials to erect identification signs for each of the buildings. Names approved included: Ram Staiger, Caskey Limited, Three Rivers Building, The Cole Building, and SSSP, according to documents filed in later litigation.

 

Two years later, Melrose submitted applications to re-name each of the buildings and appropriately change the signs to reflect the new names. Now, the record shows, Cole was to be named “wehirenurses.com” and both the Caskey and SSSP buildings were to be named “palegalhelp.com.”

 

The federal circuit court noted, “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.”

 

Shaping up as a simple re-face of these signs, right? (Side note: interesting sign design for the change from Cole Building to the wehirenurses.com building. The court said the application diagram showed “wehirenurses.com” on four separate lines with “building” on a fifth line, all within a 25' x 20' area.)

 

Pittsburgh officials turned the applications down, saying the name change moved the sign classification from “Identification” to “Advertising” and that Advertising Signs were prohibited at these locations. In the Pittsburgh code (as in other jurisdictions) the definition of an Advertising Sign was “a sign that directs attention to a business, commodity, service or entertainment, conducted, sold or offered only elsewhere than upon the premises where the sign is displayed.”  In other words, a billboard.

 

THE COMPLICATION

A month before Melrose filed its appeals after being turned down by the local zoning board, Pittsburgh officials had approved signs for the Steelers football team’s new stadium, to be named Heinz Field—after Heinz (of H. J. Heinz fame) —and the Steelers had agreed to a $57 million sponsorship deal. 

 

As the circuit court tells it, “Neighbor-hood organizations challenged the proposed signage at Heinz Field, arguing that the signs were Advertising Signs rather than Identification Signs and therefore prohibited.” And the Zoning Board for Pittsburgh, the court noted, “acknowledged that certain Identification Signs, which mention the name of a company or product, may also have an advertising aspect.”

 

The Zoning Board put together a series of four criteria that a sign with “some” advertising component needed to prove to still be classified as “Identification.” The criteria were (1) purpose of sign to establish a destination point (2) established location important to material segment of public (3) evidence of intended longevity of sign at location and (4) owner of facility or its principal user in control of sign, rather than third party.

 

Then, by virtue of these newly-drafted criteria, the Heinz Field signage passed muster in Pittsburgh. But the Melrose buildings did not. The quick turn of two sets of names (and signs) on the buildings that Melrose had the rights to name, Pittsburgh officials thought, did not show longevity nor owner control. Melrose filed a lawsuit with claims under the First Amendment and 14th Amendment (equal protection.)

 

(Side note: another complication, the court noted, was that a Melrose representative had testified before the Zoning Board that the “purpose of the signs was to direct individuals to the website business in order to make a profit.”)

 

The Melrose claims first went before a federal magistrate, who heard testimony and found under a Central Hudson analysis that the proposed sign (the “speech” at issue) was misleading, and rejected the Melrose claims.*

 

THE APPEAL

The magistrate’s report was reviewed by the federal district court, which rejected the conclusion that the sign’s content was misleading but affirmed that the claims did not survive a Central Hudson analysis. Melrose appealed, and the Third Circuit filed its opinion in July.

 

The Third Circuit first said that Central Hudson was not pertinent to the claims, as that legal analysis concerned distinguishing between commercial and non-commercial speech. Instead, the court decided that its 1994 decision in Rappa v. New Castle County (18 F.3d 1043) was the proper review.

 

In that decision, involving an ordinance regulating outdoor advertising, the Third Circuit found that “some signs are more important than others.” Why? The court reasoned:

 

“They are more related to the particular location than are other signs. Allowing such ‘context-sensitive’ signs while banning others is not discriminating in favor of the content of these signs; rather, it is accommodating the special nature of such signs so that the messages they contain have an equal chance to be communicated.”

 

To survive the Rappa “context-sensitive” review, a claimant needed to prove that its sign was “significantly related to a specific location.” The court offered two instances that it felt would pass the test. First would be a sign that is “particularly important to travelers on a nearby road, such as a directional sign.” The other would be a sign that “better conveys its information in its particular location than it could anywhere else” and used an address sign as an example. 

 

THE DECISION

Ultimately, the Third Circuit found the Pittsburgh ordinance, and its interpretation by the Zoning Board, to pass Rappa. Thus, the decision about the Heinz Field signage was appropriate because it was context-sensitive. “Such signs clearly better convey their information at the location they are intended to identify… (and) also promote public order by providing the public with information regarding specific buildings.”

 

This is an instructive case for several reasons. First, we face again the entire use of “context sensitive” in regards to signage restrictions. I guess the industry could grouse about another set of legal options being tightened. Instead, I would say let’s bone up on Context Sensitivity.

 

One place to start reviewing this concept from a planner’s viewpoint is the 2001 APA publication Context-Sensitive Signage Design, available as a .pdf for no charge at www.planning.org/research/signs)

 

Second, there is still too much leeway for the zoning regulators, as in Pittsburgh, to use a subjective rather than objective determination of issues such as the “true intent behind the sign” and whether the name on the sign “will remain constant for a significant period of time.”

 

Finally, I like the court’s embrace of the value of a sign promoting “public order.” Coupled with the extensive traffic safety research conducted by Penn State, sponsored by the USSC Foundation, we may have found some precedent underlying the critical function of signs to direct motorists in a safe and timely manner. 

 

For more stories written by David on our nation's sign codes, visit his archive page.