Board rejects Whitefish mural appeal

By LYNNETTE HINTZE/Daily Inter Lake

The city of Whitefish has once again said no to an ice-cream mural in downtown Whitefish, this time with the Board of Adjustment upholding the zoning administrator's ruling that the sign must have a permit or be removed.

The Board of Adjustment voted 4-1 on Tuesday to uphold the city's earlier decision. Ralph Simpson was the lone dissenter.

The outctry over the mural on the west side of Mrs. Spoonover's ice-cream shop started this summer when the city told business owner Judy Scallen the sign was illegal because it constituted advertising.

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 asked for a due-process hearing before Zoning Administrator David Taylor. Taylor ruled in early September that the mural is an advertising device and must have an approved sign permit to remain on the building. That decision was appealed to the Board of Adjustment.

The next step is an appeal to District Court, said Scallen's attorney, Sharon Morrison, but no decision has been made yet whether Scallen will appeal.

"We didn't expect to prevail" before the Board of Adjustment, Morrison said. "But we were required to exhaust all administrative remedies before we could take it to court. Frankly I think it's a First Amendment issue that is more appropriate for the courts to decide."

Scallen could apply for a variance from the City Council for the total allowed sign area, but it's a costly process, Morrison said. It cost Scallen $990 to appeal to the Board of Adjustment. That's quite expensive, Morrison pointed out, since it costs only $100 to appeal a court decision to the Montana Supreme Court or $300 to appeal to the U.S. Supreme Court.

Scallen has 30 days to make a decision on the next appeal.

Morrison continues to argue that the mural - painted by artists from Stumptown Art Studio - is a work of art and thereby should be exempt from sign allowances.

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