Council looks at how to define 'artwork'

The Whitefish City Council strayed onto the slippery slope of judging art while considering what one councilor hoped would be a solution to the Mrs. Spoonovers lawsuit at their Feb. 16 meeting.

Councilor Chris Hyatt proposed amending the section of the sign ordinance that covers exempt and prohibited signs with a new subsection C.

The amended subsection would allow the council to waive provisions of the sign ordinance for 'signs that are substantially 'works of art' containing no text," that are "consistent with the values and appearance of the community," and which are "tasteful, not offensive, and poses no harm to the overall well-being of the community."

The proposed amendment met with some criticism.

"I don't want to be the 'taste police,'" councilor Ryan Friel said, adding that he was "leery of the slippery slope" problem and asked how the council would judge a mural of an ice cream cone versus a mural of two men smoking cigars on a park bench.

Mayor Mike Jenson, who is a potter, echoed that viewpoint.

"After 34 years of trying to define what art is, I will not sit here and try to decide what it is," he said, adding that "one council will say one thing, and the next will say something else."

Noting that he believed Mrs. Spoonovers "clearly violated the sign ordinance," city attorney John Phelps pointed out First Amendment problems with Hyatt's language but offered to find a way to craft an amendment to the sign ordinance that would meet the councilor's intent.

The sign ordinance must be "content neutral," Phelps said. "We can't be the art police."

City planning director David Taylor said Hyatt's proposed amendment didn't specify a public process or notification to neighbors, among other problems. He noted that a variance process already exists in the sign ordinance, and Hyatt's amendment could be incorporated into that process.

Councilor John Muhlfeld noted that the variance fee costs $1,980 and asked if Mrs. Spoonovers would cover that cost, but city manager Chuck Stearns noted that Hyatt's proposal was council-initiated. Taylor said his reduced planning department staff could absorb the work.

"I just want to solve the problem and move on," Hyatt said, agreeing to have Phelps and Taylor work on his amendment.

The draft amendment will come back to the council before going to the Whitefish City-County Planning Board. The council directed staff to work on the amendment by a 5-1 vote, with Friel in opposition.

Joel and Judy Scallen, who have operated Mrs. Spoonovers in Whitefish since 1997, moved from Central Avenue to the former Burch's One-Hour Photo building at Second and Spokane in 2008 and began remodeling the block building.

The Scallens paid $335 for a sign permit from the city planning department on May 27, 2008, that allowed two commercial signs totaling 34 square feet, the maximum allowed in the Old Town sign district. The Scallens say they never spoke with the city about these signs, and the permit was handled by a professional sign consultant. But Judy Scallen signed the permit and initialed its five conditions, including that her signs "will conform to all requirements of the sign district."

A drawing of a film canister remained on the west wall from the previous business when they took over the lease. The Scallens say they offered use of the west wall to artists at Stumptown Art Studio to contribute to the mural aspect already existing in town.

The artists received no input from the restaurant business, the Scallens said, and the intent of the mural was not advertising but to dress up a drab wall. The resulting mural depicts, from top to bottom, a teapot, a spoon, a doughnut, an ice cream cone and a bowl of soup — all food sold at the restaurant.

After former city planner Nikki Bond and chief building official Virgil Bench informed the Scallens that the mural appeared to violate the sign ordinance, city attorney John Phelps told the Scallens in a July 1, 2008, letter that they needed a sign permit for the mural. Since they already had the maximum square footage allowed, Phelps said, the mural would have to be removed.

Three weeks later, Whitefish attorney Sharon Morrison, on behalf of the Scallens, requested a hearing with the city zoning administrator, planning director David Taylor. The Scallens presented their case on Aug. 28, 2008, explaining why they believed the mural was artwork, not a commercial sign.

In a formal decision issued Sept. 2, 2008, 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."

In a letter 10 days later, Morrison appealed Taylor's decision to the city's Board of Adjustment. Morrison said Taylor erred in interpreting the city's ordinances, specifically "in determining that the mural, designed and painted not for hire, but as a gift to the community by local artists, was not an exempt work of art."

Morrison said Taylor failed to recognize that the mural 'serves to preserve and enhance the unique aesthetic character, beauty and charm of Whitefish and the surrounding area and that it encourages the continued development of tourism in Whitefish."

The Scallens borrowed $990 to appeal the case to the city's Board of Adjustment. During the Oct. 28, 2008, hearing, Morrison compared the fee to the $300 filing fee for a Montana Supreme Court case and called it an impediment to due process.

Morrison said the case presented First and 14th amendment Constitutional issues and urged the board to reach a decision that would bring peace again to Whitefish. This was a fight the city didn't need to have, she told the board.

Phelps responded to Morrison's Constitutional arguments by reminding the board that the city's sign ordinance had been before the Montana Supreme Court and the city prevailed. He said there was no doubt in his mind that the city could lawfully regulate commercial speech.

But Morrison's other Constitutional argument was that the sign ordinance had not been applied equally. She told the board the city code lacked strict guidelines, as shown by Taylor's testimony about murals and signs at other businesses that she said appeared to violate the sign ordinance.

Taylor said he used the 'reasonable person test" when interpreting city code, and whether the artists painted the mural as a gift was not the issue. He addressed some of the businesses cited by Morrison and explained that they had sign permits or were likely grandfathered-in, such as the Bulldog Saloon.

He also noted that the Scallens had alternatives — they could keep the mural and remove some of their other signs. As for the cost of the fee for appealing to the Board of Adjustments, he compared it to a commercial variance fee, which is $1,980. The Scallens could request a variance from the city council, he said.

The board members agreed that the mural was attractive, but Rebecca Norton said she didn't understand how the Scallens got as far as they had without a permit. Board member Ralph Simpson wondered if signs at other businesses were truly grandfathered-in. The Scallens' appeal was denied 4-1, with Simpson in opposition.

After the Board of Adjustment hearing, Morrison said she didn't expect to prevail but wanted to exhaust all administrative remedies before taking the case to district court, a better venue for First Amendment cases.

The Scallens sued the city in Flathead County District Court in December 2008. Morrison claimed the city denied the Scallens of their Constitutional rights, privileges and immunities, and that the Scallens suffered mental and emotional distress, time lost from their business and expenses. The Scallens requested unspecified damages and a jury trial.

The city handed the case over to its insurance company and the Kalispell law firm Hammer, Hewitt, Jacobs and Floch, which responded to the Scallens with a counterclaim on Feb. 2, 2009, seeking injunctions of alleged misdemeanor conduct by the Scallens.

Under city code, each day a violation continues is considered a separate offense punishable by a fine of up to $500 and confinement up to six months. Judy Scallen said she wouldn't back down and would rather go to jail.

The city, however, said it's intent was not to criminally prosecute the Scallens. Angela Jacobs characterized the Scallens' argument as 'strange to say the least" because they had been in violation of city's zoning regulations for about eight months.