Variance granted for mural
A variance request for a mural painted
on the west side of the Mrs. Spoonover’s restaurant was approved by
a 3-2 vote at the Whitefish City Council’s Dec. 6 meeting.
Councilors John Muhlfeld and Ryan Friel voted in opposition.
The legality of the mural has been in
dispute since July 2008, when the city notified the restaurant’s
owners, Joel and Judy Scallen, that the mural exceeded the square
footage allowed under the city’s sign ordinance.
The Scallens appealed the matter to
city Planning Director and Zoning Administrator David Taylor, who
determined the mural was a sign and not a work of art because it
depicted items sold in the restaurant — soup, a bagel and ice
cream.
The city’s Board of Adjustment affirmed
Taylor’s decision, but in July this year, Flathead County District
Court Judge Katherine Curtis vacated the board’s decision while
re-affirming Taylor’s ruling that the mural was a sign.
The mural became politicized during
last fall’s municipal elections, when several candidates who won
election to the City Council cited the Scallens’ lawsuit as an
instance of city government being heavy-handed and unfair.
Mayor Mike Jenson reminded people at
the council’s public hearing that “this is a variance request,”
noting that he intended to interrupt comments if they strayed from
that purpose. But the one person who addressed the council, Richard
Hildner, asked a question specific to the staff report.
While the Scallens’ variance
application, written Whitefish attorney Sharon Morrison, continued
to claim that the mural was a work of art, not a sign, and that the
city unfairly allowed other downtown buildings to have murals, city
planners took a different approach in drafting their staff
report.
In evaluating the eight criteria used
to judge a variance, city planner Wendy Compton-Ring noted that the
Mrs. Spoonover’s restaurant is narrower than many other downtown
buildings. Some buildings have combined lots, which means more
lineal frontage and therefore more square-footage allowed for
signs, she said.
“A smaller building is allowed less
signage, and a larger building is allowed more signage,” she said.
“This standard presumes that a smaller building has less need to
advertise than a larger building, but this is not always
necessarily true.”
Compton-Ring also noted that the Mrs.
Spoonover’s restaurant is located between a vacant corner lot owned
by Town Pump, a parking lot owned by CenturyTel and an alley that
“creates the circumstance that the lot does function as a corner
lot without actually being a corner lot.” She also noted that “the
premise’s building is smaller than most adjacent properties, but
the hardship is not entirely peculiar to their property.”
The “unusual” circumstance of the
restaurant’s location was a factor in considering whether granting
the variance would confer a special privilege that is denied to
other properties in the same district.
Taylor told the Pilot his department
was not directed by anyone in how to write the staff report. While
they made an effort to establish findings that would support a
variance request, city planners did not specifically recommend
approval.
Taylor also noted that he was named in
the Scallens’ lawsuit and that he had a separate settlement
agreement. He said a “gag order” prevented him from talking about
it.
Muhlfeld asked Taylor during the
meeting if granting the variance might establish a “special
privilege” that the city would have to grant to other applicants
who want larger signs downtown.
“That’s the risk you take,” Taylor
replied.
“My problem is we’ll open up a legal
position we don’t want to be in,” Muhlfeld said, noting that lack
of consistent enforcement by the city led to problems with
nonconforming or illegal businesses operating in the WB-2 zone on
the U.S. 93 strip.
A lot of people have gotten away with
violating the sign ordinance, councilor Chris Hyatt pointed out. He
expressed frustration that the council was not heading toward a
unanimous vote that would make the council’s position clear to the
public.