Judge rules against city in mural case

Flathead County District Court Judge Katherine Curtis has ruled against the city of Whitefish in the Mrs. Spoonovers sign ordinance case.

The Whitefish Board of Adjustment was not provided with accurate information and did not make independent findings of fact when reviewing Judy and Joel Scallen's appeal of the city planning director's decision on their mural, Curtis said in her July 19 order. Curtis ordered the board's decision against the Scallens vacated.

The case began when former city attorney John Phelps informed the Scallens in July 2008 that a mural of an ice cream cone, coffee cup, saucer, doughnut, teapot and spoon on the west side of their restaurant brought them in excess of the maximum allowed square footage for commercial signs in the downtown zoning district.

He told them they could remove the mural, apply for a sign permit and reduce other signs on the building, or appeal the decision.

The Scallens, through their attorney, Sharon Morri-son, claimed the mural was a work of art, not a commercial sign, and was exempt from the city's sign ordinance. The mural was created by members of the Stumptown Art Studio.

On Sept. 2, 2008, city planning director David Taylor ruled that "despite its attractive nature," the mural was "an advertising device." Responding to Morrison's slide presentation of other murals in Whitefish, Taylor said the city "did not single out" the Mrs. Spoonovers mural. He agreed that downtown murals are part of the city's heritage, but the Scallens' mural is "not solely art."

The Scallens borrowed $990 to appeal the case to the city's Board of Adjustment. While the board members agreed that the mural was attractive, they ruled 4-1 against the Scallens' appeal.

In her order this week, Curtis noted that the court may reverse, modify or affirm the board's decision in whole or in part. To do that, the court must determine if the board "abused its discretion" by issuing a decision that "is so lacking in fact and foundation that it is clearly unreasonable," she said, citing case law.

Curtis found that Taylor "did not apply White-fish City Code regarding signage in a consistent, content-neutral and nondiscriminatory fashion." Furthermore, the Board of Adjustment relied on three conclusions issued by Taylor in his memorandum to them, rather than making their own findings of fact.

While acknowledging that the Mrs. Spoonovers mural depicts items used or sold within the restaurant, Curtis noted that Taylor's decision "was not consistent with determinations made regarding other murals and signs within the same district," as the Scallens had argued. She cited three examples:

¥ A "window sign" on the Red Caboose Diner depicts a diner in a train car with a coffee cup and a menu that reads "The Red Caboose." Taylor had testified that "because this artificial window was proposed by the Architectural Review Committee, I do not consider it to be signage."

Curtis, however, noted that city code "does not afford any exemption to signage proposed by the Architectural Review Committee." Taylor had also testified that "the city does not regulate signs that are placed or painted on actual windows," a point that Curtis found to be "of no significance whatsoever."

¥ When considering a sign permit for Remedies Day Spa's mural of a woman relaxing on a chair surrounded by mountains and flowers, the city measured only the area immediately around the reclining woman. Taylor, however, "did not do the same for the mural on Mrs. Spoonovers," Curtis said.

While noting that Mrs. Spoonovers would still have been in excess of the allowed square footage if measured differently, "there was no explanation for the disparate treatment of the two murals and no citation to a provision in city code to justify the discrepancy," Curtis said.

¥ Figures in murals on the east side of the VFW Lounge are dressed in military uniforms, Curtis said, and the VFW Lounge 'seeks to attract current and former members of the military to its premises."

But Taylor "distinguishes these murals from a sign on the grounds that they were painted by grade-school students and that they 'do not depict any goods or services sold by the VFW bar,'" she said, citing Taylor. That explanation, which was provided to the Board of Adjustment, is "an inconsistent, constrained interpretation and application of the sign regulations," Curtis said.

The findings of fact adopted by the board were provided by Taylor, Curtis said. She found issue in particular with finding No. 3, which says the Scallens were not aggrieved by Taylor's decision because "other businesses with advertising murals have been required to get a sign permit."

"To the contrary, the evidence presented at the Board of Adjustment hearing did not establish another single business similarly situated with Mrs. Spoonovers in which the sign regulations were interpreted and applied in the same manner as they were applied to Mrs. Spoonovers," Curtis said.

While the Mrs. Spoon-overs mural "technically falls within the definition of a 'sign' under the sign regulations," Curtis said, "it is clear that application of the regulations is not to be viewed in isolation but, rather, an examination of the history and practice of application of the regulations is critical to the overall achievement of their purpose."