The Whitefish City Council has not yet decided if the city will appeal a recent District Court decision in the Mrs. Spoonover’s ice-cream cone sign lawsuit against the city, City Attorney Mary VanBuskirk said.

The council met in a closed session Monday to discuss how to proceed after Flathead County District Judge Katherine Curtis’ decision to grant Mrs. Spoonover’s owners Joel and Judy Scallen’s petition to vacate a 2008 Whitefish Board of Adjustment decision.

The board had upheld a city zoning administrator’s order 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.

The city of Whitefish has hired Kalispell attorney Angela Jacobs to represent the city in any further legal dealings in the Mrs. Spoonover’s case. Neither Jacobs nor VanBuskirk said they could comment on ongoing litigation.

 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.

In her written decision, 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’ move to vacate the Board of Adjustment decision is just one prong of the Scallens’ lawsuit, however. Sharon Morrison, the Scallens’ lawyer, said the case involves a number of other constitutional claims.

Morrison said she also can’t comment about any ongoing negotiations in the lawsuit, but noted that if the city declines to appeal and the decision is made to let the Scallens keep the mural, “we won’t claim further damages.”

The Scallens, she added, just want “peace in the valley.”

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