Lawyer marshals mural defense

Zoning administrator to issue decision in one week

The fate of Mrs. Spoonover's ice-cream-cone mural - a sign the city of Whitefish claims is illegal - is in the hands of Whitefish Zoning Administrator David Taylor, at least for now.

Taylor and Whitefish City Attorney John Phelps presided over a due-process hearing on Tuesday during which Sharon Morrison, the attorney for Mrs. Spoonover's owner Judy Scallen, presented Scallen's side of the sign dispute.

The mural in question depicts a teapot, doughnut, ice-cream cone and cup of soup - all foods served at Mrs. Spoonover's. Murals are allowed under Whitefish sign laws, but if they advertise products sold at a business, they're considered part of the allowed sign space.

Because Mrs. Spoonover's already has used its allotted 35 square feet of sign space, the mural put the business over the square-footage limit and in violation of city law. Scallen relocated her ice-cream shop from Central Avenue to the corner of Spokane Avenue and Second Street a few months ago and had a sign permit to erect the two signs that are in compliance.

Later, Scallen added the mural - painted by Stumptown Art Studio artists - on the west side of the building.

The meltdown between Scallen and the city began July 1 when the city notified her of the violation and said she would have 15 days to paint over the sign. Scallen requested a hearing as allowed by the sign laws. Taylor will have seven days to render a decision.

If Taylor upholds the city's position, Scallen can appeal to the Board of Adjustment or ask the City Council to amend the sign law or consider a sign variance that would allow her to keep the mural.

During a slide presentation, Morrison showed photographs of numerous other murals around Whitefish, some of which she maintained could be considered advertising. She pointed to murals of veterans outside the VFW Club and to paintings and tiled posts at Stumptown Art Studio that depict what goes on inside the studio.

Morrison also showed a photo of the Remedies Day Spa sign that features a woman soaking her feet. Taylor pointed out, however, that Remedies Day Spa got a sign permit for the mural, and that the city worked with the owner to consider only the woman in the large mural as sign square-footage.

Murals in Whitefish long have been a part of the resort town's charm and character, Morrison said.

"There are creative ways to abide by the law and still be sensitive to the residents of Whitefish," she said. "We don't have to have this fight."

Morrison cited a city law that states one of the effects of the sign regulations is to "protect, preserve and enhance the unique aesthetic character, beauty and charm of the city…"

She also noted a federal law pertaining to the rights of attribution and integrity of the author of a work of visual art. Such an artist has the right "to prevent any intentional distortion, mutilation or other modification of that work which would be prejudicial to his or her honor or reputation…"

And Morrison claimed there may be "constitutional implications" if Scallen is forced to remove her mural and other business owners are allowed to keep theirs.

Morrison also claimed Scallen did not know beforehand that the mural would violate sign laws.

But Phelps and Taylor continue to maintain that Scallen and her husband, Joel, through conversations with Planning and Building Department officials, knew there could be a problem if they made further modifications to the building.

Even if the Scallens weren't aware of the regulations, ignorance of the law isn't an excuse, Phelps said. A provision in the sign ordinance says it's the sign applicant's responsibility to become familiar with the law and ensure the proposed sign fully complies.

Phelps said the city has denied requests from other businesses wanting to use artwork to promote their products. RE/MAX, whose logo is a hot-air balloon, wanted to erect a sign with a balloon silhouette but was turned down by the city, he said.

Mrs. Spoonover's has the option of taking down one of its other signs to allow square footage for the ice-cream cone mural, Phelps added.

"It's a pretty sign. It's attractive," he said of the mural. "But from the city's point of view, it's just another sign."

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com