By NATE KING
Salina Post
In a bid to show off the sights, sounds and smells of Cozy Inn Hamburgers restaurant, owner Steve Howard rushed to get a new "sign" painted on the north exterior wall of his restaurant.
On the heels of BOOM 2023, a privately funded and crowd-sourced mural festival held annually in town, Howard sought to add his creative spirit to one of downtown's most iconic buildings while drawing people inside Salina's smallest burger joint.
"It's not a billboard; it’s artwork," Howard said. "It's my expression. It's my character going on my wall. I want to paint my wall."
The inspiration behind the "sign" stems from a couple Howard met when they visited The Cozy Inn for the first time.
"I had a couple come to the walk-up window, and I said, 'You need to come inside and experience the fun, experience the Cozy Inn,'" Howard said. "They said, 'Oh no, we were told not to go inside.' And I wanted to say so bad, but I didn't, 'You're 60-something years old, and you're still letting people tell you what to do?'"
Howard, the sole financier of the mural, sought the help of a local muralist Colin Benson to bring his greasy masterpiece to life. Work began on Nov. 3, one day before the much-anticipated Salina Crossroads Marathon.
According to Salina Downtown Inc. Executive Director Leslie Bishop Howard failed to complete the required paperwork mandated by the city of Salina.
"It's not just the Cozy Inn but all of the businesses in the downtown area have to fill out an application with the city for any changes to the exterior, whether it be an awning, a sign, that kind of thing," Bishop said. "That one piece (the application) did not happen in this case, and Steve has alluded to that and admitted to that."
Not long after Benson sketched the initial outlines and painted on the mustard and ketchup, videos made their way to social media, which alerted city staff.
"I think Sunday had a lot to play with that. People just videotaped and called, and then someone had to come in and say, 'Hey, this is what's happening there,'"Howard said. "Then I got a call from Dustin Herrs from Salina City Planning, and he's saying it's a billboard."
Howard said the mural is not a billboard.
"I don't have social media. I never reached out to anybody about anything — other than the artist," Howard said. "I'm not trying to stir anything out. I just want to paint a wall."
Bishop said Salina Downtown Inc. supports Howard.
"We're behind him 100%, and we will write Steve a letter of support if he needs it," Bishop said. "Today, we met with some city officials, and we're filling out all the proper paperwork."
Bishop also reiterated that the muralist is not the issue — the issue lies with filing the necessary paperwork.
"Colin is fine to do this mural that it has nothing to with him as an artist, and he doesn't even have to be approved by the city. The mural itself needs to be approved before work can begin," Bishop said.
Howard said more than 45,000 customers visit the Cozy Inn location in downtown Salina every year.
"That is a lot of people coming to downtown," Howard said."This mural is going to just be one more thing to make people go 'Wow!'"
Salina City commission eager to build consensus
During the Monday Salina City Commission meeting, Salina City Manager Mike Schrage provided context for why a code violation citation was issued.
City of Salina Codes Article X Section 42-521 for C-3 and C-4 commercial districts dictate a business's total area for advertisements or signs on its exterior.
The Cozy Inn is categorized in a C-4 commercial district, which Schrage said indicates a "mathematical formula.” The product of the formula determines a business's allotted sign space.
Each commercial zone has a unique formula that determines sign space — other zones, like C-5, 6 and 7, allow for four square feet of sign space for each foot of linear street space.
"Our codes in this particular case have been in effect since 1966 — that doesn't mean they can't be changed," Shrage said.
Schrage said Cozy's Hamburgers currently has three signs, which utilize 84% of their total sign allotment. The new mural would put it nine times over the allowable size.
"First and foremost is submitting a sign application so we have the specifics of what they intend, and we can look at that relative to the code," Schrage said.
Schrage clarified that city staff did not contact Howard with violation enforcement in mind.
"[It was] agreed to a pause on proceeding with the project so we can sort through the codes," Schrage said.
Based on the "sign" and art renderings Howard provided the city, Schrage said there is a disconnect between what Cozy intends and what the code allows.
Schrage outlined two possible avenues Cozy Inn can pursue to become compliant with or change the code. The first option is to go through a variance process with the Board of Zoning Adjustment, which Schrage said is rigorous.
The variance process requires the Board of Zoning Adjustments to reach conclusions based on five criteria, which can be problematic for Cozy Inn's case.
"There has to be something unique in terms of insurmountable challenge or something that the code might not have taken into account," Schrage said.
Schrage referenced a single case where city staff granted variance due to geographical challenges limiting the advertisement's effectiveness.
The other option is to amend the city code.
"We have a process whereby someone can make application requests for code amendment," Schrage said. "To accommodate what Mr. Howard desires, we need to increase the allowable square footage nine to 10 times what our code currently says.”
Amending the code leads to possible future approvals to cover an exterior wall entirely or even all four sides of the business.
"That starts to get very customized, very detailed, and the key factor is that it has to be applicable across the board," Schrage said.
The code currently cannot bend to specific businesses, but an amendment could allow for consistent flexibility for downtown buildings' advertisements.
Schrage reminded commissioners that this type of exception could set a precedent for future, possibly less artistic signs. While The Cozy Inn's case is unique, amending the code for the mural would take time.
"That's pretty significant policy decision. It's going to take some work,” Schrage said.
Schrage said city staff is prepared for code drafting and running the code amendment through the necessary committees for recommendations.
"The artist indicated this morning [Monday] they washed the building in preparation for painting and don’t necessarily want to leave it half finished," Schrage said. "If it's going to take into the spring before they [the muralist] have an answer, their preference is to paint it white and start over again."
Repainting the exterior wall white is likely the cleanest way from a code standpoint but is not required to continue the process.
Lauren Driscoll, director of community and development services for the city of Salina, provided commissioners with criteria that categorize something as a sign. The definition of a sign includes anything with writing, including letters, numbers, words and a pictorial representation.
“This includes illustrations or decorations,” Driscoll said.
Driscoll further defined a sign as a message or image meant to attract the public's attention, including a painting on a wall located on the exterior of a building.
"From that pure definition, this starts to tick all the boxes that make it a sign before we even get into a discussion of commercial speech versus non-commercial speech," Driscoll said.
The Office of Community Development received numerous calls asking about other signs in the community and whether or not they comply, Driscoll said.
Driscoll explained that in downtown, a business has three square feet of signage for every foot of frontage it has.
The formula utilizes the "frontage" length of a building, meaning the horizontal distance the building's foot takes up on a given street. The Cozy Inn’s frontage area is only 20.8 feet, which amounts to a total sign area allowed of about 63 square feet.
"The Cozy building is a very little building," Driscoll said. "[Cozy Inn has used] 52.88 square feet, leaving just over 10 square feet of remaining surface area of signage allowed for the building."
In the Cozy's situation, when applying the square footage analysis to the new sign, it's approximately 528 square feet which is significantly greater than the allotted amount in the C-4 district.
Driscoll said downtown has a unique challenge, its various-sized and shaped buildings and can begin a domino effect from decisions made by Zoning and Planning.
Driscoll continued, "How the buildings work together, the scale of messaging of signage really does matter in that environment plus the C-4 district is also very pedestrian focused. For example, Ninth Street is not a pedestrian environment, but everything in the C-4 district is scaled for both cars and people. So that also has to do with some of our sign regulations."
During her remarks, Driscoll gave the example of a coffee house with a dove and peace sign to illustrate the point further.
"For example, if the coffee house has a dove with an olive branch and it says the word peace on the side of it, that's not a sign because even though the word peace is there, you're not selling peace inside, and coffee may do that for some people, but in general, the dog, the olive branch, the peace is not part of a commercial transaction."
Driscoll contrasted her example by saying if the coffee house had a steaming cup of coffee, those images would draw you into the use of the building.
A different case focused on a mural depicting peaceful and calm scenes but still advertised the business it was painted on.
"There's actually a case law example of a mural, which is actually a sign of a bunch of puppies playing in a field, and it's across from a dog park,” Driscoll said. “The mural happens to be on a building that is a doggy daycare. That was deemed commercial signage.”
The case law involved a business named Wag More Dogs located next to a dog park in Arlington County, VA, where federal courts deemed the mural as an advertisement.
Salina Vice-Mayor Bill Longbine commented that The Cozy Inn is an essential staple in Salina’s food industry and that Howard’s intentions for the artwork were not an advertisement.
"I think if this had been anything other than a 101-year-old, historic institution, it wouldn't be an issue," Vice-Mayor Bill Longbine said. "I really believe he intended to get in on the whole mural trend."
Salina City Commissioner Trent Davis said even with Cozy Inn’s history in the community, allowing the mural to go up outside of city regulations would create a precedent for other businesses to use benevolently or maliciously.
Davis brought up an example of an adult store using sexually explicit imagery of their products on a building.
“Or if we had same-sex couples over the rainbow bridge on the side of the building, saying, ‘Salina Friends of the LGBTQ Community, we'd have folks coming up on the other side saying, Well, how can you allow that?’” Davis said. “I mean, that's clearly a sign. So whatever we do, it's got to be something that stands the test, no matter who's coming up to the podium."
City Commissioner Greg Lenkiewicz stressed the importance of consistency for Planning and Zoning regulations but understands the artistic value and weight that Cozy Inn wants to add to the community.
"Unfortunately, we find ourselves in a situation where I think we all appreciate the art, but we are bound by laws [codes] of our governing body," Lenkiewicz said. “We can't just arbitrarily decide, yes, this rule we're not going to enforce, and this rule, we're going to apply. There's a sense of fairness and uniformity to how we do things."
Salina City Attorney Greg A. Bengtson said most of what a city regulates is subject to a relatively simple test of whether there is a nexus between the regulation and a legitimate public purpose.
“The Supreme Court has told us now when you are evaluating anything in the commercial speech category, it undergoes what is called an intermediate scrutiny level,” Bengston said. “It’s higher than that just rational Nexus.”
Bengston provided counsel to city commissioners explaining what could be done in order to address the issue in a legal and timely manner.
“We are in an area where we as your local general counsel recognize…. I think there are efficiencies even in terms of the cost of having the specialized expert handling those sorts of questions, rather than you all having to wonder if we've figured that out or not,” Bengston said.
Commissioner Karl Ryan voiced his support for hiring an outside consultant, citing the need for wisdom and experience surrounding codes for signage.
“There are people that have been following this law for periods of time and it's important that we have their wisdom and experience and I'm sure it'll be much cheaper than us plowing a new road in,” Ryan said. “I have a lot of confidence in our staff and figuring any kind of problem out and providing remedies but it looks like we'll get much quicker answers if we buy some expertise.”
Driscoll explained that changing code takes time including public input.
“One of the things that takes a little time versus me sitting in my office just going in one line at a time, is there needs to be public process,” Driscoll said.
Driscoll said the issue regarding signs and commercial speech is not confined to downtown.
“I mean, this is something that we're seeing, not just downtown but in the other areas. And I think to have time to have conversations with those folks and ask, how are these rules feeling and fitting as we've changed as a community over the last few years is an important part of that process.”
According to Driscoll, Howard submitted the sign permit application Monday evening. A decision was not made by the commission on Monday regarding hiring an outside expert to answer questions commissioners may have.
Salina Post will update this story as more information becomes available.