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.