2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2003

Peachlum v. City of York PA

Precedential or Non-Precedential: Precedential

Docket No. 02-2977

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PRECEDENTIAL

Filed June 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2977

SYBIL PEACHLUM,

Appellant

v.

CITY OF YORK, PENNSYLVANIA; CITY OF YORK BUREAU

OF PERMITS AND HEALTH LICENSING; FRANCIS M.

NEWHAMS, in his capacity as Director of Bureau of

Permits and Health Licensing; CHARLES H. ROBERTSON,

in his official capacity as Mayor of the City of York,

Pennsylvania

Appeal from the United States District Court

For the Middle District of Pennsylvania

D.C. No.: 99-cv-02061

District Judge: Honorable Yvette Kane

Argued: April 10, 2003

Before: BARRY and ROSENN, Circuit Judges,

POLLAK, District Judge*

(Filed: June 19, 2003)

* Honorable Louis H. Pollak, Senior District Judge for the United States

District Court for the Eastern District of Pennsylvania, sitting by

designation. 
Mathew D. Staver (Argued)

Liberty Counsel

210 East Palmetto Avenue

Longwood, FL 32750

Counsel for Appellant

Donald B. Hoyt (Argued)

Steven M. Hovis

Office of City Solicitor

One Marketway West, 3rd Floor

York, PA 17401

Counsel for Appellees

OPINION OF THE COURT

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.1 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. 

1. The ordinance also regulated signs in commercial and industrial

districts. 

2
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.

I.

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.2

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

2. Peachlum’s dispute with York spans two different iterations of the sign

ordinance. A new version, § 1309, was enacted in 1995 and replaced

§ 1308 (§ 1308.02, the exemptions provision, became § 1309.04);

although most of the prohibitions and allowances of the ordinance

remained constant, an exemption was added in the later version for

signs with personal expressions of no more than two square feet and for

signs of religious significance. 

3
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 districts3; 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

$539.4

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

3. Section 1308.06 permitted the following signs in residential districts:

signs advertising wholesale produce sales; professional signs;

announcement boards; unobtrusive business signs; signs promoting

political candidates; and temporary signs advertising upcoming events. 

4. It does not appear that Peachlum meaningfully contested the matter

before the District Justice at this time or in any subsequent state court

proceeding. 

4
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 size and position of

freestanding business signs in residential districts; and

§ 1309.09(a)(6) forbade home office signage in a residential

district.5

In mid-1998, the City filed another civil complaint

against Peachlum, based upon alleged violations of

§§ 1309.09(a)(4) and (5) of the City ordinance. These

sections pertained, respectively, to the illumination of signs

in a residential district and to the maintenance of

freestanding business signs in a commercial district. In

September 1998, a District Justice entered judgment

against Peachlum and fined her $537. The sign remained

posted and, in April 1999, the ZO issued another cease and

desist order for zoning violations.6 Specifically, he found her

in violation of §§ 1309.09(a)(4) and (5). 

5. Peachlum was also alleged to be in violation of several other provisions

which primarily concerned the maintenance of a commercial

establishment in a residential district. These alleged violations do not

concern us. We are not concerned with whether Peachlum was in

violation of ordinance provisions pertaining to whether she ran a

business out of her home. It is, however, relevant whether Peachlum’s

sign was itself commercial, inasmuch as commercial speech may be

subject to a stricter ripeness test than non-commercial speech. But our

review of the record here shows scant evidence that the sign was related

to any business operation of Peachlum’s. 

6. Also in April 1999, Peachlum’s sign was vandalized, but she had it

repaired, encased in glass, and put upon posts embedded in concrete.

She received a notice that same month that the erection of such a

structure required a building permit. 

5
In May 1999 Peachlum attempted to appeal the ZO’s

April enforcement action to the ZHB. She mailed her appeal

without the required $350 fee, noting that she could not

afford it, and offering financial documentation if the Board

so desired. The Board flatly told her she could not file

without paying the $350 fee, stating: “Until the fee is

submitted, the City will consider the application incomplete

and will take no action on this appeal.” She filed a second

appeal, in which she claimed in forma pauperis status.

Again, the Board did not consider this appeal because the

fee was not paid. The City stated it will continue to seek

fines on a bi-weekly basis against Peachlum if the sign is

not removed. In November 1999, Peachlum filed this action

for declaratory and injunctive relief and for damages in the

District Court.7

II.

A.

Peachlum argues that she was not given adequate

opportunity to argue the ripeness issue before the District

Court, because the issue was not raised until the day of her

hearing on the merits of her claim. This court has

recognized that considerations of ripeness are sufficiently

important that the court is required to raise the issue sua

sponte even though the parties do not. Felmeister v. Office

of Attorney Ethics, a Div. of the New Jersey Administrative

Office of the Courts, 856 F.2d 529, 535 (3d Cir. 1988).

Moreover, Peachlum was able to argue this point in her

motion for reconsideration to the District Court. Finally,

and significantly, inasmuch as we now endorse Peachlum’s

position on the issue, and hold that her claim is indeed ripe

for disposition, whether she was given an opportunity to

argue the point is moot.

7. The District Court had jurisdiction over Peachlum’s constitutional

claim pursuant to 28 U.S.C. § 1331. This court has appellate jurisdiction

over the Order of Dismissal of the District Court pursuant to 28 U.S.C.

§ 1291. Review of a ripeness determination is plenary. Presbytery of New

Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d

Cir. 1994). 

6
B.

“The existence of a case and controversy is a prerequisite

to all federal actions, including those for declaratory or

injunctive relief.” Presbytery of New Jersey of Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.

1994). “In some circumstances the ripeness requirement is

drawn from Article III limitations on judicial power and in

others from prudential limitations.” NE Hub Partners, L.P. v.

CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001).

The function of the ripeness doctrine is to determine

whether a party has brought an action prematurely,

Philadelphia Federation of Teachers, American Federation of

Teachers, Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 323 (3d

Cir. 1998), and counsels abstention until such time as a

dispute is sufficiently concrete to satisfy the constitutional

and prudential requirements of the doctrine. Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967), overruled on other

grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977). 

The following considerations underpin the ripeness

doctrine: are the parties in a sufficiently adversarial posture

to be able to present their positions vigorously; are the facts

of the case sufficiently developed to provide the court with

enough information on which to decide the matter

conclusively; and is a party genuinely aggrieved so as to

avoid expenditure of judicial resources on matters which

have caused harm to no one. See Erwin Chemerinsky,

Federal Jurisdiction § 2.3.1 (1989). 

Accordingly, the ripeness doctrine requires that the

challenge grow out of a “real, substantial controversy

between parties” involving a “dispute definite and concrete.”

Babbitt v. United Farm Workers National Union, 442 U.S.

289, 298 (1979) (citation omitted). The question in each

case is whether the facts alleged show that there is a

substantial controversy, between parties having adverse

legal interests, “of sufficient immediacy and reality” to

justify judicial resolution. Maryland Casualty Co. v. Pacific

Coal & Oil Co., 312 U.S. 270, 273 (1941). The Supreme

Court, in Abbott Labs., incorporated the foregoing

considerations into a two-step test for determining ripeness,

which looks at: (1) “the fitness of the issues for judicial

decision,” and (2) “the hardship to the parties of

7
withholding court consideration.” Abbott Labs., 387 U.S. at

149. 

Where a dispute arises under circumstances that permit

administrative review, as in the case here, final

administrative determination is favored under the ripeness

doctrine. The basic reason for such determination is to

prevent the courts, “through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements” over administrative problems, and to enable

the agency to proceed without judicial interruption until an

administrative determination has been formalized. Abbott

Labs., 387 U.S. at 148. In many instances, a claim will be

deemed unfit for adjudication until administrative appeals

have been completed, because the administrative tribunal

might work out the intricacies of an area of law in which it

enjoys special expertise. Id.

Here, the defendants contend that this case is not ripe

for judicial consideration because the ZHB has not yet had

an opportunity to render a final adjudication of Peachlum’s

claims. They assert that deferral of a decision by the court

does not result in a hardship to Peachlum and there is no

prior restraint, as her sign has been displayed since 1994.

However, the issue raised here involves not the enforcement

of an ordinary municipal regulation but one concerning

both a facial and “as applied” First Amendment challenge to

the City ordinance. Whether the absence of final

adjudication by a municipal agency of the validity of a city

ordinance precludes judicial consideration of First

Amendment challenges to it is one of first impression.

Peachlum asserts that the District Court failed to address

the merits of these claims.

A First Amendment claim, particularly a facial challenge,

is subject to a relaxed ripeness standard.8 Dougherty v.

8. At oral argument, the City suggested that this claim was purely a

matter concerning its prohibition of illuminated signs and had nothing

to do with the speech content of the sign. Clearly, however, under the

Supreme Court’s opinion in City of Ladue v. Gilleo, 512 U.S. 43 (1994),

content neutral limitations on yard signs are subject to a stringent First

Amendment analysis for fear that broad limitations on yard signs would

stifle an important channel of public speech. Second, the City ignores

8
Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d

83, 90 (2d Cir. 2002). The courts have repeatedly shown

solicitude for First Amendment claims because of concern

that, even in the absence of a fully concrete dispute,

unconstitutional statutes or ordinances tend to chill

protected expression among those who forbear speaking

because of the law’s very existence. This concern is

particularly acute with regard to facial challenges to a

statute or ordinance. Broadrick v. Oklahoma, 413 U.S. 601,

612 (1973). 

Peachlum suggests that our opinion in Step-Saver Data

Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3d Cir.

1990), supports her claim to ripeness. Therein, this court,

interpreting Abbott Labs., set forth a three-part test for the

appropriateness of declaratory relief in a situation where

ripeness is contested. The Step-Saver test asks three

questions: 1) whether the parties’ interests are sufficiently

adverse; 2) whether the court can issue a conclusive ruling

in light of potentially evolving factual developments; and 3)

whether the decision will render practical help to the

parties. Step-Saver, 912 F.2d at 647. “The Step-Saver rubric

is a distillation of the factors most relevant to the Abbott

Labs considerations.’ ” NE Hub Partners, 239 F.3d at 342

(citation omitted). 

As Peachlum acknowledges, however, the Step-Saver

analysis is tailored to address pre-enforcement actions. See

Presbytery, 40 F.3d at 1463 (“We have adopted a three part

test in determining whether we will engage in preenforcement review in the context of a declaratory action.”);

cf. Lauderbaugh v. Hopewell Township, 319 F.3d 568, 575

(3d Cir. 2003) (declining to apply Step-Saver factors in case

where enforcement was pending). The courts have allowed

somewhat liberally constitutional challenges under

circumstances where the government has not initiated

the exemption under § 1309.04 of certain forms of speech, based on

content, from the ordinance’s other limitations, including the

illumination ban. Thus, an action brought under any provision of the

sign ordinance implicates the content based exemption provision. See

R.A.V. v. St. Paul, 505 U.S. 377, 420-22 (1992). 

9
enforcement proceedings. New Mexicans for Bill Richardson

v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995) (citation

omitted) (facial infirmity in connection with “[r]easonable

predictability of enforcement or threats of enforcement” may

be enough to ripen a claim.). 

Our stance toward pre-enforcement challenges stems

from a concern that a person will merely comply with an

illegitimate statute rather than be subjected to prosecution.

See Presbytery, 40 F.3d at 1467 (quoting Steffel v.

Thompson, 415 U.S. 452, 458 (1974)) (holding that the case

was ripe despite the state’s failure to initiate a prosecution;

it is not necessary that petitioner first expose himself to

prosecution to be entitled to challenge a statute that he

claims deters the exercise of his constitutional rights). Or,

the government may choose never to put the law to the test

by initiating a prosecution, while the presence of the

statute on the books nonetheless chills constitutionally

protected conduct. See 13A Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure

§ 3532.5 (2d ed. 1984) (in pre-enforcement context, courts

are primarily concerned with the chilling effect occasioned

by the mere existence of the statute, even absent formal

prosecution thereunder). 

Therefore, in cases involving fundamental rights, even the

remotest threat of prosecution, such as the absence of a

promise not to prosecute, has supported a holding of

ripeness where the issues in the case were “predominantly

legal” and did not require additional factual development.

See Presbytery, 40 F.3d at 1464.9

The concerns we face in circumstances where

enforcement actions are ongoing, but where administrative

finality is not yet achieved, are different. The Step-Saver

analysis is primarily concerned with whether the parties are

in a sufficiently adversarial posture and whether the

9. Similarly, with respect to prior restraint challenges “our cases have

long held that when a licensing statute allegedly vests unbridled

discretion in a government official over whether to permit or deny

expressive activity, one who is subject to the law may challenge it facially

without the necessity of first applying for, and being denied, a license.”

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56 (1988).

10
dispute has undergone sufficient factual development to

allow judicial resolution. In most post-enforcement actions

those criteria will surely have been met. The question here

is whether the courts should intervene as a prudential

matter in a dispute that is in the process of being pursued

administratively. See Armstrong World Industries, Inc. by

Wolfson v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) (“the

[Step-Saver] factors are not exhaustive of the principles

courts have considered in evaluating ripeness challenges,”

and we must independently consider the judicial preference

for administrative finality). 

As we discuss in Part II.D., a facial First Amendment

challenge is not normally subject to administrative finality

analysis under any circumstances. Depending on

circumstances, however, there may be some value in

permitting an administrative body to resolve an ongoing

dispute in “as applied” challenges once enforcement

proceedings have begun. In post-enforcement

circumstances, there may be little need to hasten

administrative resolution because the claim is already in

the process of being resolved. However, we note that this

court has never previously imposed an administrative

finality requirement on claims involving free speech rights.

We recognize that free speech may be suppressed and a

concrete injury may occur merely as a result of the

initiation of enforcement proceedings. We do not now hold

that administrative finality applies in such cases. However,

even if the administrative finality doctrine is applicable to

Peachlum’s First Amendment claims, her claims are, for the

reasons hereafter set forth, ripe.

In determining ripeness in a post-enforcement context,

we must take into account prudential considerations such

as “the degree to which postponing federal judicial review

would have ‘the advantage of permitting state courts

further opportunity to construe [the challenged provisions],

and perhaps in the process materially alter the question to

be decided.’ ” Armstrong World Industries, Inc. by Wolfson v.

Adams, 961 F.2d 405, 412 (3d Cir. 1992) (quoting Renne v.

Geary, 501 U.S. 312, 323 (1991)). “Whether a question is fit

for judicial review depends upon factors such as whether

the agency action is final . . . and whether further

11
administrative action is needed to clarify the agency’s

position, for example, when the challenged prescription is

discretionary so that it is unclear if, when or how the

agency will employ it.” Felmeister, 856 F.2d at 535-36. 

However, ripeness is not to be confused with exhaustion.

Williamson Planning Comm’n v. Hamilton Bank, 473 U.S.

172, 192 (1985) (“[T]he question whether administrative

remedies must be exhausted is conceptually distinct . . .

from the question whether an administrative action must

be final before it is judicially reviewable.”); United States ex

rel. Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977)

(“The doctrines of ripeness for adjudication and of

exhaustion of administrative remedies are distinct and not

interchangeable.”). Although courts prefer administrative

finality, Lauderbaugh, 319 F.3d at 575, the issue is

whether a provisional administrative decision “has been

formalized and its effects felt in a concrete way by the

challenging parties.” Abbott Labs., 387 U.S. at 149. “The

finality rule is designed to enforce this requirement, not to

require the exhaustion of administrative remedies.”

Lauderbaugh, 319 F.3d at 575. Thus, where a party suffers

a concrete injury prior to final administrative disposition,

such as fines or unreasonable appeal fees, the claim may

be considered sufficiently ripe. We reiterate that an “as

applied” free speech claim has never been deemed subject

to administrative finality doctrine by our court or any other

court of appeals, and we do not now so hold. But cf. Digital

Properties, Inc. v. City of Plantation, 121 F.3d 586 (11th Cir.

1997).

C.

Even if the administrative finality doctrine is applicable to

a post-enforcement First Amendment claim, Peachlum’s

claim is clearly ripe. York’s enforcement proceedings have

been spread over a period of approximately ten years and

the zoning ordinance has imposed immediate hardship

upon her. The interim decision of the zoning authorities

has been formalized and its effects felt in a concrete way.

Peachlum has had two civil judgments entered against her

levying over $1,000 in fines and costs. There is no question

that any infringement of her First Amendment speech

12
rights has already occurred, and that the Federal Court has

before it a sufficiently adverse proceeding where factual

developments have fully evolved and a decision at this point

could provide meaningful assistance to all the parties. 

Even if Peachlum were not subject to interim fines and

other hardship, this claim would still be ripe because the

ZHB appeal fee presents a steep barrier to an

administrative appeal. Therefore, although this action

comes before us in res media, because the City over a

considerable period of time has initiated enforcement

actions against Peachlum and yet no appeal has been

determined, the matter is ripe. Here, Peachlum was unable

to pay the substantial appeal fee, and she now faces

mounting fines as a result. Her failure to appeal this matter

to the ZHB is because of her uncontroverted bleak financial

situation. Although we need not decide whether Peachlum’s

due process was violated by the denial of a fee waiver,10 the

record indicates that Peachlum’s default of her right to

appeal was entirely innocent. She twice expressed her

desire to have the appeal fee waived, and offered to produce

supporting financial documentation at the City’s request. It

never so requested, nor did it apprise her that it considered

the burden of proving financial hardship to be on her. We

venture no opinion as to whether a willfully defaulted

administrative appeal might affect the ripeness of the claim,

but Peachlum’s default is innocent. 

A municipality cannot effectively foreclose the right to

10. The general rule appears to be that, in civil cases, denying leave to

appeal a lower-level decision in forma pauperis “does not [per se] offend

the requirements of due process” Parsell v. United States, 218 F.2d 232,

235 (5th Cir. 1955). However, where a party “has . . . advanced . . .

reason[s] why the denial of a fee waiver inhibits” a constitutional right,

the agency appealed to must consider this factor and exercise sound

discretion in determining whether to waive the fee. Ely v. U.S. Postal

Service, 753 F.2d 163, 165 (D.C. Cir. 1985). Thus, to the extent this case

involved a constitutional right, that Peachlum articulated to the ZHB, it

should have set forth reasons for denying her claim to have the appeal

fee waived. Here, despite Peachlum’s willingness to present financial

information, the ZHB never requested it, or offered any other data

specific to Peachlum’s claim why she should have been denied in forma

pauperis status. 

13
appeal while simultaneously asserting that the claim is

unripe. See Lauderbaugh, 319 F.3d at 575 (“[Defendant]

cannot treat its zoning decision as final enough to force a

significant hardship upon [plaintiff] by forcing her to pay

[penalties] but not final enough to be ripe for

adjudication.”). For all intents and purposes, because final

appeal is now foreclosed, the City “has arrived at a

definitive position on the issue that inflicts an actual,

concrete injury;” the claim is therefore ripe. Williamson

County Regional Planning Com’n v. Hamilton Bank of

Johnson City, 473 U.S. 172, 193 (1985). 

It is also clear that Peachlum’s claim should be deemed

ripe based upon the Abbott Labs. hardship test. Here,

Peachlum’s participation in an appeal to the ZHB is

conditioned on her tender of the $350 fee, a fee she offered

to prove she could not afford. To the extent that Peachlum’s

appeal has not been waived, the hardship here remains

substantial. The City has given no indication that it might

be willing to waive the fee.

D.

Even if there were no fees or other impediments to

Peachlum’s appeal of this matter, a facial First Amendment

challenge may be deemed ripe even during the pendency of

an administrative proceeding. Ripeness standards are most

relaxed when the First Amendment claim is a facial

overbreadth challenge. Facial claims vindicate the rights of

many would-be speakers. To allow the vindication of such

broad entitlements, we relax our ripeness requirements for

such claims. See Kines v. Day, 754 F.2d 28, 30-31 (3d Cir.

1985). 

In the case of overbreadth challenges, standing arises

“not because [the plaintiff ’s] own rights of free expression

are violated, but because of a judicial prediction or

assumption that the [challenged statute’s] very existence

may cause others not before the court to refrain from

constitutionally protected speech or expression.” Broadrick,

413 U.S. at 612. Therefore, an individual against whom no

enforcement action has been taken can still challenge a

regulation “because [that regulation] also threatens others

14
not before the court — those who desire to engage in legally

protected expression but who may refrain from doing so

rather than risk prosecution or undertake to have the law

declared partially invalid.” Waterman v. Farmer, 183 F.3d

208, 212 (3d Cir. 1999) (quoting Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 503 (1985)). 

This concern with the rights of those not before the court

holds equal force in both pre-enforcement cases and those

in which prosecution is pending. See Canatella v. State of

California, 304 F.3d 843, 853 (9th Cir. 2002). Although a

final administrative decision on Peachlum’s claim might

definitively resolve its applicability to her sign, the rights of

others may go untested. Even if Peachlum’s case had been

successfully appealed and the ordinance deemed

inapplicable to her, one can conceive of manifold other

situations where York residents might be unsure of the

status of various other forms of signage. Those residents

who are more diffident about risking penalties under the

ordinance might have their free speech rights vindicated

through Peachlum’s suit. 

The ordinance also appears to be a prior restraint, which

further counsels in favor of intervention, even absent final

administrative resolution.

[A] law subjecting the exercise of First Amendment

freedoms to the prior restraint of a license must

contain narrow, objective, and definite standards to

guide the licensing authority. The reasoning is simple:

If the permit scheme involves appraisal of facts, the

exercise of judgment, and the formation of an opinion,

by the licensing authority, the danger of censorship

and of abridgment of our precious First Amendment

freedoms is too great to be permitted.

Forsyth County v. Nationalist Movement, 505 U.S. 123, 131

(1992) (internal citations and quotations omitted). The City

of York contends that Peachlum’s ability to put up her sign,

notwithstanding the permit provision, demonstrates that

there was no prior restraint. However this reasoning is

illusory. A failure to enforce the ordinance requirements is

not tantamount to permission. The caselaw suggests that

the mere existence of such a law raises constitutional

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questions. See Thornhill v. Alabama, 310 U.S. 88, 97

(1940). The existence of the permit system chills speech,

and the failure to enjoin Peachlum physically from

maintaining her sign is not dispositive here. The permit

procedure in the ordinance enjoins speech, and thus a

ripeness holding is appropriate here.

E.

The District Court relied on Taylor Investment v. Upper

Darby Township, 983 F.2d 1285, 1291 (3d Cir. 1993), for

the proposition that “with respect to zoning disputes, a

property owner suffers no mature constitutional injury until

the zoning authority defines the application of the zoning

ordinance and defines the harm to the owner.” The District

Court therefore concluded that courts should be

exceedingly reluctant to intervene in a zoning dispute

before the administrative tribunal has had its final say.

Taylor, which concerned a zoning dispute over land use,

held that administrative finality was required “even where

the attack is premised on substantive due process,

procedural due process, and equal protection.” Id. at 1292.

This court held that deferral to the administrative tribunal

on these constitutional questions served great usefulness in

resolving these claims by establishing the zoning board’s

rationale for its action. Here, though, Peachlum was

effectively barred from appealing her claim to the ZHB.

Moreover, extending Taylor to facial free speech matters is

contrary to our precedent, which encourages the prompt

constitutional adjudication of laws which may chill the free

speech of many persons. 

The District Court and the City cited our Felmeister

opinion for the proposition that in some free speech

contexts, final administrative determinations are favored.

Notably, in that case the state had “provided an expeditious

means of testing the reach of the rule through an advisory

opinion process.” Felmeister, 856 F.2d at 531. The

plaintiffs, however, failed to avail themselves of a relatively

simple way of determining whether their speech runs afoul

of the rule. Id. In this case, not only is there no available

advisory opinion procedure, but the City has imposed a

substantial barrier to Peachlum’s invocation of its appeal

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mechanism. Moreover, Felmeister was a pre-enforcement

action in which plaintiffs were not fined or threatened with

civil actions as was Peachlum.

F.

Pursuant to our policy of allowing the District Court to

first address the merits of a claim, now that we have

decided the claims to be ripe, we decline to pass on the

issues concerning whether the ordinance is constitutionally

sound. “It is the general rule, of course, that a federal

appellate court does not consider an issue not passed upon

below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976).

Peachlum correctly notes that there may be some

circumstances under which the appellate court may be

justified in deciding an issue not passed upon in the

District Court. We believe, however, that in this instance it

would be appropriate to allow the District Court to analyze

the application of the facts pertaining to a complex

ordinance and to resolve the remaining substantive issues

in the first instance.11

III.

Accordingly, we hold Peachlum’s claims are ripe for

disposition. The Order of Dismissal will be vacated and the

case remanded for further proceedings consistent with this

opinion. Given the delays already endured by the parties, it

is expected that the District Court will proceed with

appropriate dispatch. Costs taxed against the appellees.

11. Insofar as Peachlum’s free speech, Free Exercise, and Equal

Protection claims are all interrelated, the District Court should address

all of these outstanding substantive claims together on remand, in the

interests of judicial economy. As for her due process claim, a

determination that the ordinance was unconstitutionally applied to

Peachlum would negate the fines levied against her and would

presumably render her due process claim moot. Conversely, an

upholding of the ordinance’s application would implicitly approve of the

City’s fine. 

17
A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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