Mural appeal is denied by board

By RICHARD HANNERS / Whitefish Pilot

Owners of a downtown ice cream store will either have to remove their mural or take their case to another legal venue, now that the Whitefish Board of Adjustment has turned down their sign ordinance appeal. The Oct. 28 vote was 4-1, with Ralph Simpson opposed.

Judy and Joel Scallen appealed Whitefish zoning administrator David Taylor's Sept. 2 ruling that the mural on the west side of the Mrs. Spoonovers restaurant an advertising device and not purely a work of art.

As such, Taylor said, the total signage for the business doesn't comply with the city's sign ordinance.

Whitefish attorney Sharon Morrison, who represented the Scallens, told the Pilot she volunteered to take the case with no pay because she likes the Scallens, believes in protecting the First Amendment and likes the mural.

A correct ruling by the board could bring peace to the city again, Morrison told the board. She said she's lived in Whitefish for 40 years and has never seen so much dissension. The Mrs. Spoonovers case was a fight the city doesn't have to have, she said.

Morrison reiterated the Scallens' claim that they offered up the drab wall on the building to artists at Stumptown Art Studio, who designed and painted the mural without any input from the business owners.

The mural shows a teapot, doughnut, ice-cream cone and cup of soup with a spoon over the top. The city has claimed these are items the Scallens sell inside their restaurant.

An ice cream cone is a universal symbol for small towns, Morrison told the board — it tells tourists that a small bit of Americana exists in Whitefish. Besides, Mrs. Spoonovers does not sell spoons, bagels or porridge, she said.

Morrison also addressed the sign ordinance's intent to protect, preserve and enhance the character and charm of the city. She said the natural beauty here is not unique to Whitefish because natural beauty exists in other areas. The city's murals, however, are unique to Whitefish.

One by one, Morrison cited murals and other architectural features across downtown, questioning how they complied with the sign ordinance, including trompe l'oeil-style murals by Kalispell artist Clark Heyler on the Wasabi building and the fire hall, which she said could be construed as commercial because they display the artist's name and phone number.

She also cited murals at the Remedies Day Spa and the VFW Lounge, tiled posts at the Stumptown Art Studio, footprints in the sidewalk in front of the Bulldog Saloon, and the railroad-crossing arm at the Red Caboose cafe.

When called to the stand, Taylor said Heyler's name and phone number cannot be read from the street, and the murals are not considered advertising. The bulldog on the side of the Bulldog Saloon likely predates the sign ordinance, and Remedies Day Spa applied for a sign permit, he said.

Taylor also noted that anytime planners interpret the code, they use the "reasonable person test," which leaves some discretion.

Morrison also called the $990 fee for a zoning appeal "confiscatory," noting that it costs $120 to file a case with the Flathead County District Court and $300 to appeal a case to the Supreme Court.

She told the Pilot the Scallens appealed to the Board of Adjustment to exhaust all administrative remedies and hope the city will release the Scallens from the zoning appeal fee.

The Scallens have up to 30 days to appeal the board's decision to district court, which Morrison said is a more comfortable venue for her. They can also seek a variance by appealing directly to the city council, as Taylor advised them earlier, but the fee for a commercial variance is $1,980. Or they can request a zoning text amendment from the city council on the status of murals.