Appeal from the United States District Court For the Middle District of Pennsylvania D.C. No.: 99-cv-02061 District Judge: Honorable Yvette Kane
Before: Barry and Rosenn, Circuit Judges,
Pollak, District Judge *fn1
The opinion of the court was delivered by: Rosenn, Circuit Judge
This appeal primarily concerns the ripeness of facial and as-applied First Amendment challenges to a municipal ordinance regulating the size, content, and appearance of lawn signs in residential districts.*fn2 Sybil Peachlum sued the City of York, Pennsylvania, for declaratory and injunctive relief and damages for attempting to bar her from posting a freestanding 3-1/2 foot by 5 foot sign in her front yard. The sign depicted an anthropomorphized peach holding a newspaper with the headline: "Peachy News. Jesus is Alive." Neon lights, frequently illuminated, rimmed the sign.
Peachlum filed her suit in the United States District Court for the Middle District of Pennsylvania, challenging the First Amendment constitutionality of the ordinance, both facially and as applied to her. She further alleged that the ordinance's application to her violated the Free Exercise and the Equal Protection clauses of the Constitution. Lastly, she asserted that the City, by insisting that she pay a $350 fee in order to appeal the decision of the City's Zoning Officer (ZO) to the Zoning Hearing Board (ZHB), violated the Due Process clause.
The District Court, observing Peachlum's failure to appeal the determination of the ZO to the ZHB, which, under the York municipal code had the final say on disputes involving the ordinance, dismissed the suit as unripe. Peachlum timely appealed. We vacate the Order of Dismissal.
Over a period of nearly ten years, the City had repeatedly cited Peachlum for numerous separate violations of the ordinance, including its bans on directly illuminated signs and on freestanding business signs in residential districts. The ordinance, however, pursuant to § 1308.02, exempted certain types of signs from its strictures, including: directional signs, resident identifiers, and flags. Various forms of commercial signs, including those advertising homes for sale or garage sales, were also exempted, as were holiday signs and memorial or historical signs.*fn3
Unexempted signs had to comply with all other sign regulations, and, moreover, required a permit even if they did not run afoul of any of the ordinance's express prohibitions. Hence, signs falling under the exemptions provision could be directly illuminated without incurring penalty and could also be maintained without a permit: "No permit shall be required and the regulation of this article shall not apply to any of the [enumerated exempted types of signs.]" Peachlum, according to the City, did not qualify for an exemption.
Peachlum now challenges the First Amendment constitutionality of the ordinance on the grounds that (1) by exempting certain forms of speech based on content, it is overbroad; (2) by forbidding, without a permit, various forms of lawn signage, the ordinance simply forecloses too much public speech; (3) the terms of the ordinance, in particular the exemptions provision, are too vague for a reasonable person to comprehend; and (4) by requiring a permit before the posting of certain types of signs, the ordinance is a prior restraint.
In late 1993, Peachlum first erected her sign on her front lawn in York. The City's ZO advised her to remove it and cited her for violations of §§ 1308.02, 1308.06(a), and 1308.14(a) of the sign ordinance in effect at that time. Specifically, she was cited under § 1308.02 because a permit was required before placement of any type of sign other than those listed therein; under § 1308.06 because it did not fall within a list of enumerated types of signs that were permitted within residential districts *fn4; and under § 1308.14(a) because her sign was directly illuminated in a residential district.
She then applied for a permit pursuant to § 1308.02 and that was denied; the ZO held that he could not issue a permit for a sign which was independently unlawful under §§ 1308.14(a) and 1308.06(a) of the ordinance. Peachlum never appealed any of these ZO enforcement actions to the ZHB, although she was informed of her right to do so on the cease and desist notice. She subsequently complied with the order to remove the sign, but re-installed it in late 1994. In 1995 the City filed a civil complaint under the ordinance, charging Peachlum with violations of §§ 1308.14(a) and 1308.06(a). A District Justice entered judgment against her and assessed a fine in the amount of $539.*fn5
Later in 1995, the City enacted a slightly different version of the sign ordinance, § 1309, replacing §1308. It rewrote § 1308.02 as § 1309.04, which, in addition to most of the old exemptions, newly exempted signs of personal expression of no more than two square feet in area, and signs of religious significance. At no time was Peachlum's sign deemed to fall within these new exemptions.
Despite all the City's legal actions, Peachlum kept up her sign. In May 1998 the City's ZO again issued a cease and desist order, based on provisions of the modified ordinance. The cease and desist order alleged that she was in violation of the following provisions of the ordinance: Section 1309.09(a)(2) allowed the placement of a "nonilluminated announcement or professional sign" only if the sign was fixed flat against the building or inside a window with the size of the sign not to exceed two square feet. Section 1309.09(a)(4) banned illuminated signs in residential districts; § 1309.09(a)(5) limited the ...