Shop wins legal right to mural

Mrs. Spoonover’s owners Joel and Judy Scallen have prevailed in their legal quest to keep a colorful ice-cream cone mural on the side of their Whitefish restaurant.

Flathead County District Judge Katherine Curtis on Monday granted the Scallens’ petition to vacate a 2008 Whitefish Board of Adjustment decision that upheld a city zoning administrator ruling to remove the mural or have it permitted as a sign.

Curtis said the board and Whitefish Zoning Administrator David Taylor failed to apply Whitefish sign laws in a reasonable, consistent and non-discriminatory fashion.

“I’m euphoric,” Judy Scallen said Tuesday afternoon while serving customers. “It’s been three years, and I really hope this will help all the small businesses.”

The mural, which depicts an ice-cream cone, teapot, doughnut and a cup of soup — all foods served at Mrs. Spoonover’s — became an emotionally charged issue in the resort community after the city ordered the Scallens to remove the mural because it was an advertising device that needed a sign permit.

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, the city argued.

Mrs. Spoonover’s already had used all of its sign space.

The Scallens appealed Taylor’s decision to the Board of Adjustment, which upheld Taylor’s ruling. They then appealed the Board of Adjustment’s decision to District Court.

In her ruling, Curtis acknowledged that the mural in question is used to attract attention for advertising and thereby constitutes a sign. But it’s the lack of consistency in how the city has administered its sign laws that makes the Mrs. Spoonover’s case discriminatory, the judge explained.

Curtis’ rationale cited three other Whitefish businesses with artwork signs advertising their businesses. In all three cases the zoning administrator failed to treat murals in a consistent manner, she said.

At the Red Caboose Restaurant in downtown Whitefish there’s a large mural painted on the side of the building that shows a coffee cup and a menu.

That sign is painted on an artificial window, but because the fake window was proposed by the city’s Architectural Review Committee, Taylor didn’t figure it as a sign.

“The city does not regulate signs that are placed or painted on actual windows,” Taylor told the court in an affidavit.

At Remedies Day Spa, the city exempted part of a mural of a woman relaxing on a chair, surrounded by mountains and flowers. The reclining woman was counted as signage, but not the mountains and flowers.

“Mr. Taylor did not do the same for the mural on Mrs. Spoonover’s,” Curtis pointed out. “There was no attempt to measure only around the ice cream doughnut, coffee cup, etc.”

Murals at the VFW bar were cited in the legal case as the third example of inconsistency by the zoning administrator.

Those murals shows people in military uniforms, but Taylor determined they’re not signs because they were painted by grade-school students and don’t depict any goods or services sold by the VFW bar.

“There is no evidence that the VFW bar is not a commercial enterprise seeking to attract current and former members of the military,” Curtis said, “and that the murals were not placed on the building in order to attract the attention of such patrons to the location.”

The judge further said she found it interesting the city asserted that the court “should not be concerned at this juncture with whether or not the decision at issue represented a consistent and non-discriminatory application of the sign regulations since these issues are confined to the plaintiffs’ constitutional claims.”

The city argued the only decision before the court was whether the mural was a sign rather than a work of art.

“This position ignores the very stated purpose” of Whitefish sign regulations “to provide a comprehensive system of reasonable, effective, consistent, content-neutral and non-discriminatory sign standards.”

Whitefish City Attorney Mary VanBuskirk was not available for comment.

Whitefish City Manager Chuck Stearns said he had not seen the ruling and deferred comment to the city attorney. He said a decision to appeal the District Court ruling would be up to the City Council.

Whitefish attorney Sharon Morrison provided legal counsel to the Scallens at no charge, which prompted Judy Scallen to promise Morrison “free ice cream until I die.”

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